Reasonable accommodations, proportionality and the role of the judge

The central concept of this research project is the 'reasonable accommodation duty'. It is a legal obligation that originated in the USA and has found its entry into the Belgian legal system through EU Directive 2000/78. In the employment sphere, the reasonable accommodation dutyrequires employers to take the necessary measures to attenuate the hindrances people with disabilities face in order to allow them to fully participate in the workforce. Examples are: lowering thresholds, changing work schedules, supplying language interpreters etc. In some legal systems, the duty exists in other contexts as well, for example in education, health care, cultural life etc. Courts seem to struggle with the concept because the legislature gave little guidance concerningthe application. The concept is vague which makes it inaccessible to persons with disabilities and legal practioners. As a result of this, an individual with a disability often does not receive the protection he is entitled to. The goal of this research was to find a workable interpretation of this duty in order to substantiate the obligation that already exists. The research is based on a combination of the relevant legal theory and comparative research on the legal practice in a selection of legal systems and instruments. Firstly the reasonable accommodation duty, its sources, the conditions, the exception of the disproportionate burden, the procedural rules and the legal consequences of a breach weredescribed for a number of legal instruments and systems: the UN Convention on the Rights of Persons with Disabilities, US, Canada, EU, Netherlands and Belgium. Since the reasonable accommodation duty ispart of the right to equality, the research focused in Part II. on the different theories concerning equality and the way in which the theory is reflected in the reasonable accommodation duty. The different theoriesconcerning disability were also explored and connected to the reasonable accommodation duty. Part III. contains a discussion of the proportionality analysis which clearly underlies the considerations concerning reasonable accommodations and the exception of the disproportionate burden. The starting point is the general proportionality analysis as described by Alexy innbsp;'A Theory of Constitutional Rights'. To increase the predictability of the analysis, a catalogue is formed of factors that according to the relevant caselaw are regularly weighed when considering a reasonable accommodation. In addition the duties of the parties in the prelitigation phase as well as in court are explained in relation to the explicit application of the proportionality analysis. In Part IV. the role of the judge in this matter was clarified.The limits to a judge's duties were explored in this matter. The discussion concerned among others the acceptability of implications of a decision for legal actors who were not a party to a case and the extent to which the judge can order redress. These limits were seen as the borders of a judge's authority. Within these limits, the intensity of the test can vary. In an attempt to increase the predictability of the proportionality analysis even more, the factors that can influence the intensity in the matter of the reasonable accommodation duty, and the way a judge chooses his position because of these factors, were discussed and clarified. The research project resulted in normative conclusions with relevance for the Flemish, Belgian and European legal order, which were formulated in Part V.status: publishe