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KMID : 1124020130290010105
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Korean Social Security Studies
2013 Volume.29 No. 1 p.105 ~ p.133
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The Prohibition of Disability Discrimination and the Duty of Just Accommodation
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Shim Jae-Jin
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Abstract
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Firstly this article analyses and assesses the first court case since the enforcement of the Prohibition of Disability Discrimination Act (PDA) in 2008. The court`s judgements shows that it misunderstood the relationship between direct discrimination on the grounds of disability and the duty of just accommodation. Unlike the court`s judgements, the undue hardship clause has not to be applied where it is decided whether direct discrimination on the grounds of disability is justified. This is because the courts` interpretation on the clause in which, as a matter of fact, the duty of just accommodation is imposed, is contrary to the effect that the Act intends to implement such duty gradually. Despite this misinterpretation, the court held that direct discrimination on the grounds of disability in this case was justified, although helping the blind person to use the health spa would not put undue hardship on its owner. This second misinterpretation took place because the court did not distinguish between undue hardship and hardship. Although this article is critical of the rationale for the court`s judgement, it maintains that direct discrimination on the grounds of disability in the case is justified because the Act allows the owner of the spa to refuse the blind person to enter on the grounds that even simple hardship on the owner can be a justifiable reason for the refusal as a result that the duty of just accommodation clause applies with significant exceptions in its scope. Having found that the duty of just accommodation is not available for the blind person under the PDA, this article proposes three problems of current provisions on the duty of just accommodation by means of comparison with disability discrimination law in the UK and the US. Firstly, the PDA allows the duty of just accommodation clause both not to apply to some areas and to gradually be enforced. As a result, the scope of exclusion of the duty of just accommodation clause is very broad. Moreover it allows only the duty of just accommodation clause not to be applied. Secondly, the PDA adopts exhaustive list of the duty of just accommodation. This means that there is no duty if it is not listed in the PDA or the Executive Order even though, like this court case, it can be done without undue hardship. Thirdly, the PDA lacks criteria for judging whether measures in question gives rise to undue hardship. This article suggests that the criteria should be strict given the fact that the Act requires ``just accommodation``, not ``reasonable accommodation``, for instance, in the UK law.
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KEYWORD
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the Prohibition of Disability Discrimination Act, Disability Discrimination, the Duty of Just Accommodation, the Duty of Reasonable Accommodation, Undue Hardship
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