Reasonable accommodation: practice and prospects

The research project will explore the role of reasonable accommodation ("RA") in ensuring equality in law and propose its new expanded use. Relying on the notion of inclusive equality, it will be argued that the current equality law framework displays various shortcomings, especially exposed in the disability rights area. This is demonstrated in practice by the expanded use of RA especially in disability rights cases. Practice also shows that the concept has a potential to be a broader tool for ensuring equality, targeting individual disadvantage and providing tailor-made remedies for all victims of discrimination. Upon laying down the theoretical foundation of equality as a legal concept and discussing the shortcomings, I will analyse the use of RA in European jurisdictions. Drawing on the inspiration from other legal systems, I will then develop a common core of the RA and propose its alternative use within the European system.

All human beings are born free and equal in dignity and rights. Achieving equality for persons of such diverse backgrounds, functionalities, wishes and life situations, as present among humanity, is a never-ending struggle of the equality law field. Particularly, disability as a life-situation remains to be a challenge for the way we perceive and ensure equality, as practice shows that the legal tools we use to achieve this end, are often insufficient in fulfilling it. Most prominent attempts to accommodate the way we perceive equality under the influence of the disability rights field have, in my view, been proposed by the capabilities approach developed by A. Sen and M. Nussbaum, and by the framework of transformative equality proposed by S. Fredman. Both view the purpose of equality law to be dismantling existing barriers in accessing rights, goods, or services lead to a potential re-definition of the target group of equality protection, from the identity-based model, to a contextual-based one.

Although the framework has a very convincing potential to address the shortcomings of the equality law field, it is yet not certain how and through which means this approach would be translated into normative area, i.e. how to use it to
achieve practical equality in law.

I suggest that the concept of reasonable accommodation ("RA") significantly contributes to answering this question. Although in Europe it is predominantly used in the area of disability or religious freedom, it has a much larger potential
to alleviate objective disadvantage in the realization of rights for all persons, and also a potential to help adjust the assessment of rights violations to take proper account of vulnerability and disadvantage.

Although arguably perfectly fitting to accommodate some of the disregarded purposes of equality law, RA is theoretically and doctrinally underexplored and its usage in practice is fragmented and often, confused. The aim of this study is to
help clarify the role of the concept, define the common core of its use in the European area and, based on the theoretical background and examples from other jurisdictions, formulate its potential prospective use to help practically achieve the aims of inclusive equality.

The research will be divided into four main clusters:
Chapter 1: Justice, equality and non-discrimination
Chapter 2: Disability-specific issues related to equality
Chapter 3: Reasonable accommodation in practice
Chapter 4: The prospects of reasonable accommodation

The proposed framework for the project is as follows:
Chapter 1
o 3/2019 - pilot 10 pages
o 12/2019 - draft, review at a board meeting
Chapter 2
o 8/2019 - pilot 10 pages
o 6/2020 - draft, review at a board meeting
Chapter 3
o 5/2019 - case-law research
o 12/2020 - draft, review at a board meeting
Chapter 4
o 3/2021 - pilot 10 pages
o 6/2021 - draft, review at a board meeting
o 12/2022 - refining, finalizing all chapters