Forbud mod handicapdiskrimination på arbejdsmarkedet: Tilpasningspligten

Abstract

Discrimination against persons with disabilities exists within the contemporary Danish employment market. Within the EU, this discrimination is illegal, and in attempt to ensure compliance with the principle of equal treatment, the duty to accommodate was introduced. As of 2004, Denmark implemented this accommodation mandate and the anti-discrimination directive. The purpose of this report is to investigate the duty to accommodate, through the following problem statement: How should the duty to accommodate persons with disabilities be designed, so it is optimal for this group? Subsequently, should there be an anti-discrimination mandate in regards to wage and employment? Persons with disabilities who are competent and available have the right to reasonable accommodation. Although the definition of handicap can only be vaguely defined, it is built on a social construct. Reasonable accommodation is an appropriate measure. The measure will be appropriate if it is effective and practical to adapt the workplace to the disability. If such an accommodation can be made, the question then arises whether it would amount to a disproportionate burden on the employer. If such a burden will result, then by definition, the accommodation will not be reasonable, unless there is a subsidy from the government which eases the burden. The thesis concludes that if the duty to accommodate is not written directly in the law, and the question is only investigated by direct and/ or indirect discrimination, there will be a risk of dilution of the discrimination test, so the persons with the disabilities can not trust that they will have the right to reasonable accommodation here. From an economic view the question if there should be a duty to accommodate depends on the antidiscrimination mandate enforceability. In theory the anti-discrimination mandate in regards to wages should be possible to enforce, but in regards to employment should only partially be possible to enforce. If this was true, then the duty shall be removed, because it hurts persons with disabilities. However the empirical work shows that none of the anti-discrimination mandates can be enforced. Thus the efficiency of the duty depends on the cost of the duty and how much the duty is valued. This concludes that the duty does not hurt the people with disabilities and should stay. In addition it should be provided through the existent accommodation duty, but the quantifiable benefits should be accounted for.