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Back to: Seventh Session of the Ad Hoc Committe


United Nations

General Assembly

Distr.: General
7 December 2005
Original: English


Ad Hoc Committee on a Comprehensive and
Integral International Convention on the
Protection and Promotion of the Rights and
Dignity of Persons with Disabilities

Seventh session
New York, 16 January -3 February 2006


The Concept of Reasonable Accommodation in Selected National Disability Legislation

Background conference document prepared by the
Department of Economic and Social Affairs

Executive summary

This paper provides a description of how national legislation incorporates the concept of “reasonable accommodation” to persons with disabilities. The paper is based on legislation pertaining to the following countries/entities selected on the basis of present availability to the Secretariat as well as illustrative value: Australia, Canada, European Union, Ireland, Israel, New Zealand, the Philippines, South Africa, Spain, Sweden, United Kingdom, United States and Zimbabwe.



This paper aims at describing how selected national legislation incorporates the concept of “reasonable accommodation” to persons with disabilities and provides information on the concept of “disproportionate burden”, a qualifier that often accompanies the provision of reasonable accommodation.

The paper is based on legislation pertaining to the following countries/entities selected on the basis of present availability to the Secretariat as well as illustrative value: Australia, Canada, European Union, Ireland, Israel, New Zealand, the Philippines, South Africa, Spain, Sweden, United Kingdom, United States and Zimbabwe.

In codifying the concept of reasonable accommodation, States have used a variety of terms to connote the types of accommodations that must be made to secure the right to equality for persons with disabilities. The respective terms that have been used include the following: reasonable accommodation, reasonable adjustments, adaptations or measures and; effective or suitable modifications.

Distinct terminology has also been used with reference to disproportionate burden including undue burden; undue, unjustifiable or unreasonable hardship; unreasonable disruption; unreasonable requirement and; unjustified, unreasonable or significant costs.

The concept of reasonable accommodation did not originate in the context of disability. The term reasonable accommodation was originally employed in United States Civil Rights Act of 1968 in reference to discrimination on the grounds of religious practice. The Civil Rights Act requires employers to “reasonably accommodate” an employee or potential employee’s religious observance or practice unless an accommodation would cause undue hardship on the employer’s business. The concept of reasonable accommodation was first applied to the disability context in the United States Rehabilitation Act of 1973.

The following section summarizes the legislative formulation of the concept of reasonable accommodation in the above mentioned countries/entities.


The term “reasonable adjustment” is not expressly specified in Australia’s Disability Discrimination Act of 1992. Rather, the Act proscribes “indirect discrimination,” which, under the terms of the Act, requires the “removal of unreasonable requirements which disadvantage people with a disability” (paragraph 6).

The Australian Human Rights and Equal Opportunity Commission is charged with interpreting the Disability Discrimination Act’s provisions. In interpreting paragraph 6 of that Act (indirect discrimination), it has concluded, that while no specific provision is made, “the Disability Discrimination Act definitely requires employers to make reasonable adjustment”.

However, this duty does not apply in the employment context where the provision of such services or facilities “would impose an unjustifiable hardship on the employer . . . or which would be unreasonable” (paragraph 15(4)). Neither does it apply in the educational context where such provision would also “impose an unjustifiable hardship on the educational authority” (paragraph 22(4)).

Otherwise, the Disability Discrimination Act does not define unjustifiable hardship. Rather, paragraph 11 merely provides that, "in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account", including:

• the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned

• the effect of the disability of a person concerned

• the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship

• in the case of the provision of services, or the making available of facilities - an action plan given to the Commission under section 64.

With regard to costs to the employer, the Australian Commission specifies that consideration should be given to “the net costs (or benefits) which are identifiable or reasonably likely to result overall for the employer, not simply the direct or upfront or gross costs.” This may require taking into account:

• direct costs

• any offsetting tax, subsidy or other financial benefits available in relation to the adjustment or in relation to the employment of the person concerned

• indirect costs and/or benefits, including in relation to productivity of the position concerned, other employees and the enterprise

• any increase or decrease in sales, revenue or effectiveness of customer service

• how far an adjustment represents any additional cost above the cost of equipment or facilities which are or would be provided to an employee similarly situated who does not have a disability

• how far an adjustment is required in any case by other applicable laws, standards or agreements

• relevant skills, abilities, training and experience of a person seeking the adjustment.

In addition to the financial costs and financial benefits of making the adjustment and the benefit of providing equal opportunity,
treatment or participation to the person with a disability directly concerned, consideration may be required of:

• any benefit, or detriment, of the adjustment concerned for access or opportunity for other employees or potential employees, customers or clients or other persons who would possibly be affected

• benefit or detriment of the adjustment concerned for the effective organization of work in the enterprise or workplace concerned, having regard to: the number of employees; the spatial organization of work; the nature of work to be performed; relevant customer requirements; workforce planning needs; any "down time" or interruption to production involved in making the adjustment and; any other factors affecting the efficiency, productivity, success and, where relevant, competitiveness of the enterprise

• whether the adjustment would impose unreasonable requirements on other employees

• the nature and likelihood of any benefit or detriment to health or safety of any person in making the adjustment

• the nature and likelihood of any environmental benefit or detriment as a result of making the adjustment

• whether the adjustment concerned would assist, or interfere, with compliance with applicable provisions of other relevant laws, standards or agreements and the nature and likelihood of any other benefit or detriment as a result of making the adjustment.


In Canada, the obligation to provide reasonable accommodation is enshrined in federal and provincial human rights statutes as well as judicially interpreted into the general non-discrimination clause of the Canadian Charter of Rights and Freedoms (paragraph15). According to the Canadian Supreme Court:

The principle that discrimination can accrue from a failure to take positive steps to ensure that disadvantaged groups benefit equally from services offered to the general public is widely accepted in the human rights field. It is also a cornerstone of human rights jurisprudence that the duty to take positive action to ensure that members of disadvantaged groups benefit equally from services offered to the general public is subject to the principle of reasonable accommodation… Reasonable accommodation, in this context, is generally equivalent to the concept of "reasonable limits" (Eldridge v. British Columbia (Attorney General) [1997] 3 S.C.R. 624).

Reasonable accommodation is also legally required through the Employment Equity Act. According to paragraph 5(b) of that Act (Employer Obligations), “every employer shall implement employment equity by . . . making such reasonable accommodations as will ensure that persons in designated groups achieve a degree of representation in each occupational group in the employer’s workforce that reflects their representation in society.”

The limits to the duty to accommodate are described alternately as either “reasonable” accommodation or accommodation to the point of “undue hardship,” depending on the respective legislative requirements at the federal and provincial levels.

In determining whether an accommodation would impose undue hardship, the factors of health, safety and cost must be taken into account. It is understood that the employer is in the best position to determine how to accommodate employees without undue hardship and therefore bears the responsibility for doing so.

The legal responsibility to make accommodations for a person with a disability does not stop when minor hardships are encountered. Canadian courts have mentioned many factors relevant to an assessment of whether hardship is “undue” in a work setting, including:

• financial cost;

• disruption of a collective agreement;

• disruption of services to the public;

• the morale of other employees;

• interchangeability of the workforce and facilities;

• the size of the employer’s operation (because this may relate to the employer’s ability to bear the cost and adapt the workplace);

• safety;

• interference in the operation of the employer’s business;

• overall economic climate.

In deciding whether hardships are excessive or “undue” in a school, college or university setting, a court or tribunal may look at factors such as:

• the financial resources required to provide an accommodation;

• the degree and kinds of effects that accommodations will have on other students;

• the impact of accommodations on the educational program itself;

• unusual risks, if any, that accommodations may pose for staff or other students, including other students who have a disability.

European Union

The European Union has issued Directive 2000/78/EC which establishes a general framework for equal treatment in employment and occupation. The Directive requires, inter alia, that all Member States adopt disability nondiscrimination legislation by 2004. Article 5 of the Directive stipulates:

“In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.”

The approach taken in Directive 2000/78/EC entails a combination of two approaches adopted in legislation at the national level prohibiting denial of reasonable accommodation. It is, on the one hand, a general norm applicable to employers. On the other, it recognizes that denial of reasonable accommodation, in itself, is a form of discrimination.

Article 10 of the Directive clearly puts the burden of proof on the employer:

“Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.”


Irish law mandates the provision of reasonable accommodation to persons with disabilities in two pieces of legislation: The Employment Equality Act of 1998 and the Equal Status Act of 2000. The Employment Equality Act (No. 21 of 1998) provides that “An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities” (paragraph 16(3)(b)).

This requirement is based on the understanding that “For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those activities” (paragraph 16(3)(a)).

Likewise, the Equal Status Act, which proscribes discrimination on the ground of disability, states that “For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service” (paragraph 4.1).

Finally, and uniquely, Ireland’s Employment Equality Act of 1998 appears to focus on financial costs to the employer. Under paragraph 16(3)(b), an employer “shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities.” However, subsection (c) specifies that a refusal or failure to provide such special treatment or facilities “shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.”

Section 34(3) goes on to specify that unlawful discrimination shall not be found where it is “shown that there is clear actuarial or other evidence that significantly increased costs would result if the discrimination were not permitted in those circumstances”.


Israel’s Equal Rights for People with Disabilities Law, 5758 (1998) refers to the obligation to make “adjustments.” Section 6 provides that “within the framework of services provided in society and aimed at the general public, adjustments shall be made as required by the particular circumstances, and as stated in this Law” for persons with disabilities. This is in line with the “purpose of th[e] Law,” which is:

[T]o protect the dignity and freedom of a person with a disability, to enshrine her/his right to equal and active participation in society in all the major spheres of life, and, furthermore, to provide an appropriate response to the special needs of a person with a disability, in such a way as to enable her/him to live with maximum independence, in privacy and in dignity, realizing her/his potential to the full (paragraph 2).

In the context of employment, “discrimination” is defined as “includ[ing] failure to carry out the adjustments required by virtue of the special needs of a person with disabilities which will make the employment of such a person possible” (paragraph 8.e). “[A]djustment(s)” is defined as “includ[ing] adjustments with respect to the workplace, equipment at the workplace, requirements of the job, work hours, hiring tests, instruction and training and work practices, provided that such adjustment does not impose an undue burden upon the employer.” “Undue burden” is then defined as “a burden that is unreasonable in the circumstances”.

Under Israeli law, adjustments with respect to the workplace are required, “provided that such adjustment does not impose an undue burden upon the employer.” According to the corresponding statute,

"undue burden" means a burden that is unreasonable in the circumstances having regard to, inter alia, the cost and nature of the adjustments, the size and structure of the business, the scope of its operations, the number of employees, the make-up of the workforce, and the existence of external or state funding for the purpose of carrying out adjustments.

The test of “reasonableness in the circumstances” is based on a balancing of all relevant factors. Israeli law does, however, appear to privilege financial costs to the employer in defining undue burden.

New Zealand

New Zealand’s Human Rights Act of 1993 makes exceptions to the general prohibition of discrimination for both religion and disability by requiring the provision of “accommodation.” With regard to disability, the Human Rights Act specifies that different treatment based on disability is permitted where “the position is such that the person could perform the duties of the position satisfactorily only with the aid of special services or facilities and it is not reasonable to expect the employer to provide those services or facilities” (paragraph 29(1)(a). In this regard, it is always the duty of the employer to “take reasonable measures” to ensure the equal treatment of all employees regardless of disability.

The same is true in both the housing and education contexts. Under paragraph 56 of the Act, persons in charge of accommodations must “take reasonable measures” to reduce any risk that would otherwise justify denying accommodation to a person with disabilities. Similarly, sections 57 and 60, read together, prohibit refusing admission to an educational establishment to a person whose disability is such that that person requires special services or facilities that in the circumstances can reasonably be made available (being services or facilities that are required to enable the person to participate in the educational programme of that establishment or to enable the person to derive substantial benefits from that programme).

New Zealand’s 1993 Human Rights Act specifies that a failure to provide special services or facilities required by an employee for the performance of his/her duties is permissible only in two circumstances: first, where “it is not reasonable to expect the employer to provide those services or facilities”; second, where the employment environment presents a risk of harm and it is not reasonable to take that risk, unless the employer could, without unreasonable disruption, take reasonable measures to reduce the risk to a normal level.

The same specifications of “reasonableness” apply to the provision of special services or facilities to enable persons with disabilities to gain access to or use any public place or vehicle. That is, such services or facilities must be provided unless “it would not be reasonable to require” their provision. Likewise, risk of harm shall not be a justification for denial of access if the person in charge of the place, vehicle, or facility could, “without unreasonable disruption, take reasonable measures to reduce the risk to a normal level” (paragraph 43).

The Philippines

According to the Magna Carta for Disabled Persons of the Philippines, reasonable accommodation includes “(1) improvement of existing facilities used by employees in order to render these readily accessible to and usable by disabled persons; and (2) modification of work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustments or modifications of examinations, training materials or company policies, rules and regulations, the provision of auxiliary aids and services, and other similar accommodations for disabled persons” (paragraph 4.h).

Philippine law differentiaties the exception to the duty to provide reasonable accommodation in the employment and public services/accommodations contexts. Under its Magna Carta for Disabled Persons, a discriminatory act in the provision of public accommodations and services includes:

a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of the goods, facilities, services, privileges, advantages, or accommodations (paragraph 36.2).

The Magna Carta places the burden on the service or accommodations provider to demonstrate that the removal of a barrier is “not readily achievable”. In the employment context, by contrast, the Magna Carta only appears to permit arguments on the “reasonableness” of the accommodation (paragraph 32).

South Africa.

In South Africa, reasonable accommodation is ensured through the Employment Equity Act No. 55 of 1998. According to that Act, reasonable accommodation means “any modification or adjustment to a job or to the working environment that will enable a person from a designated group to have access to or participate or advance in employment” (paragraph 1). The South African understanding of reasonable accommodation is that it applies to all persons, regardless of disability, in function of the general principle of non-discrimination. Thus, reasonable accommodation must be provided to ensure equal opportunities on account of not only disability, but other grounds for discrimination such as age and sex.

The provision of reasonable accommodation in South Africa is specifically defined as a measure of “affirmative action.” Section 15.2 of the Employment Equity Act specifies that “Affirmative action measures implemented by a designated employer must include—. . . making reasonable accommodation for people from designated groups in order to ensure that they enjoy equal opportunities and are equitably represented in the workforce of a designated employer”.

The scope of reasonable accommodation in the employment context has been defined in South Africa in the Code of Good Practice on Disability in the Workplace by the Department of Labor. This Code specifies that reasonable accommodation applies to applicants and employees, and may be required during the recruitment and selection processes; in the working environment; in the way work is usually done and evaluated and rewarded; and in the benefits and privileges of employment (paragraph 6.3). It also specifies that employers may adopt the most cost-effective means that are consistent with effectively removing the barrier to a person being able to perform the job, and to enjoy equal access to the benefits and opportunities of employment (paragraph 6.2).

The Code of Good Practice on Disability in the Workplace elaborates in a non-binding manner the scope of reasonable accommodation found in the 1998 Act. The Department of Labor has further clarified the concept, in function of the “reasonableness” standard, in its Technical Assistance Guidelines on the Employment of People with Disabilities (chapter 5).

According to the Code, “unjustifiable hardship” is defined as “action that requires significant or considerable difficulty or expense. This involves considering, amongst other things, the effectiveness of the accommodation and the extent to which it would seriously disrupt the operation of the business” (paragraph 6.12).

In this regard, the Department of Labor notes that the concept requires an objective analysis that includes consideration of not only whether the accommodation will create “difficulty or expense that will seriously disrupt the operation of the business” but also (1) the effectiveness of the accommodation; (2) the impact of providing or failure to provide accommodation to the employee, (3) the systemic patterns of inequality in society, as well as (4) the objectives of the Act and the Constitution.

Significantly, “unjustifiable hardship” is considered to be a more rigorous standard than “undue hardship.” According to the Department of Labor, this more rigorous standard is necessitated by South Africa’s history of providing so little employment and accommodation for people with disabilities. The South African Code thus encourages employers to make more effort to reduce and eliminate discrimination and/or promote affirmative action.


Spain’s 2003 Law on Equality of Opportunities, Non-Discrimination and Universal Accessibility of Persons with Disabilities provides for reasonable adjustment (Ajuste razonable).

Under Spanish law, “ajuste razonable” is defined as “the measures of accommodating the physical, social and attitudinal environment to the specific needs of persons with disabilities which, in effective and practical form and without supposing a disproportionate burden, facilitate the accessibility or participation of a person with a disability in equal conditions as the rest of the citizenry” (paragraph 7.c).

Spain utilizes the term “disproportionate burden” (“carga desproporcionada”) in its legislation. Article 7 provides that, “to determine whether a burden is proportional or not one must take into consideration the costs of the measure, the discriminatory effects failure to adopt the measure would imply for the persons with disabilities, the structure and characteristics of the person, entity or organization that must implement it and the possibility of obtaining official financing or other assistance.”

United Kingdom

The United Kingdom’s Disability Discrimination Act of 1995 legislates the duty of employers “to make adjustments” (paragraph 6.1). This duty applies where “any arrangement” or “any physical feature of premises” of employer “place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled.” In such a case, “it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect”.

Subsection 3 of paragraph 6 specifies examples of steps an employer may have to take to comply with this duty:

• making adjustments to premises;

• allocating some of the disabled person’s duties to another person;

• transferring him to fill an existing vacancy;

• altering his working hours;

• assigning him to a different place of work;

• allowing him to be absent during working hours for rehabilitation, assessment or treatment;

• giving him, or arranging for him to be given, training;

• acquiring or modifying equipment;

• modifying instructions or reference manuals;

• modifying procedures for testing or assessment;

• providing a reader or interpreter;

• providing supervision.

Significantly, a failure of an employer to comply with a paragraph 6 duty imposed on him in relation to a disabled person constitutes discrimination against the disabled person, unless the employer can show his failure to comply was “justified” (paragraph 5.2).

An employer discriminates against a disabled person if two conditions are met: “(a) he fails to comply with a section 6 duty [to make reasonable adjustments] imposed on him in relation to the disabled person; and (b) he cannot show that his failure to comply with that duty is justified.”

The Act stipulates, however, that “failure to comply with a section 6 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial (paragraph 5.4).

According to the Disability Rights Commission’s Code of Practice: Employment and Occupation:

“The Act does not permit an employer to justify a failure to comply with a duty to make a reasonable adjustment” (provision 5.43). “Clearly, however, an employer will only breach such a duty if the adjustment in question is one which it is reasonable for it to have to make. So, where the duty applies, it is the question of ‘reasonableness’ which alone determines whether the adjustment has to be made” (provision 5.44).

Section 6(4) of the Disability Discrimination Act nonetheless lists key factors which must be considered in determining whether it is reasonable for an employer to have to take a particular step in order to comply with his or her paragraph 6(1) duty to make reasonable adjustments: “[R]egard shall be had, in particular, to

(a) the extent to which taking the step would prevent the effect in question;

(b) the extent to which it is practicable for the employer to take the step;

(c) the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities;

(d) the extent of the employer’s financial and other resources;

(e) the availability to the employer of financial or other assistance with respect to taking the step”.

The appropriate balancing test is hence one which balances effectiveness, practicability, costs to employer, and resources available to employer.

United States

The term reasonable accommodation was originally employed in United States Civil Rights Act of 1968, an anti-discrimination legislation which focus was on discrimination on the grounds of religious practice and disability. In the wake of the Civil Rights Act, substantial jurisprudence developed on the meaning of reasonable accommodation and the obligations of employers to provide reasonable accommodation. The concept was further extended to housing (Fair Housing Amendment Acts of 1988) and to the disability context, first in the 1973 Rehabilitation Act and subsequently in the 1990 Americans with Disabilities Act, which provides comprehensive federal civil rights protection for persons with disabilities.

The Americans with Disabilities Act prohibits discrimination against persons with disabilities in employment, public accommodations, services provided by state and municipal governments, public and private transportation, and telecommunications. It defines discrimination, as it applies “to job application procedures, hiring, advancement, or discharge, employee compensation, job training, and other terms, conditions, and privileges of employment,” as including “not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee (paragraph 102(a)(5)(A)).

The statute then goes on to define “reasonable accommodation” by way of illustrations. According to the Americans with Disabilities Act, reasonable accommodation “[m]ay include—(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules…” The limited legislative guidance owes to the diversity of ways in which accommodation may reasonably be provided in individual circumstances, none of which are legislatively mandated. It also owes to the public policy guideline that individual accommodations should be agreed upon through an interactive process between employer and employee, or provider and providee, based on the circumstances of the particular case.

The U.S. Equal Employment Commission has provided guidance on the meaning of “reasonable accommodation,” defining it as “adapting the job site or job functions for a qualified person with a disability to enable an individual with a disability to enjoy equal employment opportunities”.

Under the Americans with Disabilities Act, discrimination includes “not making reasonable accommodation…, unless [the covered entity] can demonstrate accommodation would impose undue hardship on the operation of the business” (paragraph 102 (a)(5)(a). The Act goes on to define “undue hardship” as “an action requiring significant difficulty or expense, when considered in light of …factors to be considered …(i) nature and cost of the accommodation needed…(ii) overall financial resources of the facility…(iii) overall financial resources of the covered entity; (vii) type of operation” (paragraph 101(11)).

According to the federal Equal Employment Opportunities Commission, which issued Enforcement Guidance in March 1999 to clarify the duty to reasonably accommodate, undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive or disruptive, or those that would fundamentally alter the nature or operation of the business. The inquiry focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Thus, employers should determine undue hardship on a case-by-case basis, relying on several factors, including:

• the overall financial resources of the facility making the reasonable accommodation; the number of employees at this facility; the effect on expenses and resources of the facility;

• the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);

• the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer;

• the impact of the accommodation on the operation of the facility.
The guidance specifically instructs that the employer should determine whether funding is available from an outside source, such as a state rehabilitation agency, to help defray the cost of an accommodation. The employer should also consider tax credits or eligibility for deductions, and should determine whether the employee is willing to pay the portion of the costs that would impose an undue burden. Before an employer may claim that it cannot accommodate an employee's disability, the employer is obligated to ensure that no reasonable accommodation exists that does not impose an undue hardship.


Zimbabwe’s Disabled Persons Act of 1992 focuses exclusively on the “reasonableness” of the adjustments to be made in the circumstances of a particular case. Section 7 of the Act requires the owner or provider of public services, accommodations or other amenities, when presented with an “adjustment order,” to “undertake at his own expense such action as may be specified in order to secure reasonable access by disabled persons to the premises, service or amenity concerned.”

Under the law, owners or providers may appeal to the Administrative Court against such order within 30 days of service on the grounds that the order is “unreasonable” in the circumstances of the case (paragraph 7(5)). Legitimate grounds upon which such a defense could be based are includes the following:

• The person concerned cannot reasonably be expected to bear the whole or any part of the expense required in implementing the adjustment order; or

• The period stipulated for implementing the adjustment order is unreasonable; or

• The nature of the action required . . . is, in the circumstances of the case, unreasonable.


The scope of reasonable accommodation, based on the legislation reviewed, does not usually extend to all areas of social, political, civil and economic life covered by the discrimination prohibition. It is often statutorily limited to the employment and housing contexts and/or the provision of public goods and services.

As for the concept of disproportionate burden, all formulations tend to rest on two common denominators: (1) an insistence on “reasonableness in the circumstances”; and (2) an underlying proportionality test that balances the rights of, and burdens and benefits to, all persons affected by the proposed accommodation or adjustment.

A common denominator as well is that all examples of national legislation, together with their accompanying interpretations, place the burden of proof with respect to “unjustifiable hardship” (or its terminological equivalent) on the claimed provider of reasonable accommodation (e.g., the employer or the landlord).

While it is the claimant’s burden—the responsibility of the person with disabilities who asserts his/her right to an accommodation—to prove that the sought accommodation is “reasonable” (which the defendant—the party against which the action is brought—can rebut, based on the totality of the circumstances), it is the claimed provider’s burden to prove that “unjustifiable hardship” will arise if the accommodation or adjustment is provided. In this way, “reasonableness” and “unjustifiable burden,” while largely identical in scope, are often interpreted in national legislation as a means of differentiating a plaintiff’s case from the defendant’s legitimate defense.






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