Reasonable accommodation - at what cost?

Abstract: The United Nations Convention on the Rights of Persons with Disabilities is not only the main instrument of international disability law, but also connects the field with a multitude of other areas of international human rights law. In its 27th Article it guarantees the right to work for persons with disabilities, thereby bridging the gap between international disability- and international labour law. Adopting a respect-protect-ensure framework, the right to work for persons with disabilities is ensured through a right to reasonable accommodation. This right lacks a clear definition in the Convention but is not unlimited and accommodation measures can be denied where they would be unreasonable or impose an undue burden on the party responsible for implementing them. At the same time, the right to reasonable accommodation is extensive and accommodations can in-principle not be ruled out entirely. This thesis seeks to clarify the limits to reasonable accommodation in the labour market. As the limitations are not further defined than excluding what would be unreasonable or impose an undue burden in the Convention itself, an interpretive method based in the Vienna Convention on the Law of Treaties is employed, consisting of a textual analysis of the relevant Articles of the UNCRPD in their context, supplemented and completed by General Comments and Communications of the United Nations Committee on the Rights of Persons with Disabilities as well as some published scholarly commentaries to the Convention. Through this analysis it is found that no clear definition of the limits is discernible, but some themes can be identified. Reasonable accommodation can only justifiably be denied when it would present an undue burden or be unreasonable and the bar for this should be understood to be high. Essentially, the only factors which can be taken into account are material and financial costs, and when doing so a holistic view should be taken of the employer’s resources, considering the employing organization as a whole, where those with greater resources are also expected to tolerate greater costs, and net-cost of the measure rather than any actual sum. As a common theme to all examined Communications, the CRPD Committee has declined to make statements on the material contents of the assessment, focusing instead on the need for procedural correctness through the performance of an objective reasonability test performed in accordance with the principles of the Convention. However, common to all auxiliary sources used is also the emphasis on the existence of a margin of appreciation. This margin of appreciation only encompasses the how, and not the if, of reasonable accommodation, but it appears that it is within its width and definition that the answer to the question of where the limits to reasonable accommodation are is to be found.