A/HRC/34/26
must therefore exist and be available; for instance, some isolated areas, such as small
islands, might not dispose of sign language interpreters or augmentative communication
support people, in which case the service would not be available to provide an
accommodation within a short period of time or immediately, given that its provision is
materially impossible in the time frame. As stated earlier, however, those in charge should
make good faith efforts to provide an accommodation.
Relevant (“necessary” and “appropriate”)
(e)
53.
As a criterion, relevance seeks to assess whether a requested accommodation is
tailored to the purpose of ensuring the exercise of rights on an equal basis with others, and
not unrelated to it. An accommodation must be both necessary to remove a particular
barrier and appropriate to (or effective in) ensuring the realization of the right in question.
54.
These important elements should be considered during any dialogue to assess
alternative accommodations. National practices in New Zealand, Scotland and South Africa
consider the effectiveness of the adjustment requested.
Proportional (“not imposing a disproportionate or undue burden”)
(f)
55.
Determining whether an accommodation would entail a “disproportionate or undue
burden” requires an assessment of the proportional relationship between the means
employed (including time, cost, duration and impact) and the aim, which is the enjoyment
of the right concerned. A case-by-case approach is therefore required.
56.
National practices take different factors into consideration; for example, laws in
Finland and in the United States of America refer to the cost of measures. Other factors,
such as the time required to implement an accommodation and its duration and frequency,
are highlighted in practices followed in, for instance, Australia, the Netherlands and
Belgium. In this regard, States have other obligations under the Convention that are
weighted in favour of determining the proportionality of the measure;27 for example, if an
accommodation would improve general accessibility, there is an enhanced obligation to
provide it, as it advances a general duty. Furthermore, reasonably predictable indirect
benefits to the entity in charge of providing an accommodation could weigh in favour of its
implementation (such as increased sales, by allowing access to persons with disabilities as
consumers, enterprise leadership and increased brand value).
57.
Regulations in Finland, the United States of America, the European Union, Canada,
Scotland and the Netherlands also take into account the size of the organization (for
example, by the number of employees). Some also consider the impact of the measure on
the requested party and its operations, the positive effect on the person concerned and any
other beneficiaries.
58.
With regard to employment, national practice has showed that a cost–benefit
analysis seeking to assess “the cost of reasonable accommodation in relation to a perceived
benefit to the employer and the employee” 28 might lead to hypothetically discriminatory
decisions; consequently, it should be precluded. Moreover, distributing non-essential tasks
among other employees is a frequently required accommodation.
59.
Financial feasibility focuses on the possible financial options for the requested party
in providing reasonable accommodation. This includes assessing their cash flow as it
27
28
See CRPD/C/12/D/5/2011, appendix (dissenting opinion), para. 5. Such a criterion has also been
adopted in national law in Australia.
United States Equal Employment Opportunity Commission, Enforcement Guidance: Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act, 2002, para. 45.
13
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