Reasonable Accommodation

Reasonable accommodation is primarily a non-discrimination principle and an addition to the attainment of substantive equality.294 _{It is a principle that is integral to the}

286 _{(D45/05) [2007] ZALC 69 3-4 [7]; Grogan Employment Rights 221; Du Toit et al Unfair}

Discrimination in the Workplace 90.

287 _{(D45/05) [2007] ZALC 69 13 [23].} 288 _{(D45/05) [2007] ZALC 69 16 [30].} 289 _{(D45/05) [2007] ZALC 69 18 [36].} 290 _Ibid. 291 _{(D45/05) [2007] ZALC 69 19 [38].} 292 _Ibid. 293 _{(D45/05) [2007] ZALC 69 19 [39].}

294 _{Klinck, Malan, Nel, Ngwena, Phatsoane, Pieterse, Pretorius, Strydom and Rabikissoon (eds)}

determination of whether there has been unfair discrimination and whether such discrimination is justifiable.295 _{In order to treat people equally, it may be necessary to}

treat them differently by accommodating difference.296 _{Reasonable accommodation}

requires the employer to take positive measures and modify the job or working environment in order to enable a job applicant or existing employee who is burdened with a protected characteristic such as disability, religious affiliation, etc., that is adversely served by the employer’s job requirements or the working environment, to comply with the inherent requirements of the job.297 _{Whilst the test for determining}

unfair discrimination, developed by the CC in Harksen v Lane,298 _{does not}

acknowledge the duty of reasonable accommodation in any explicit way, it nevertheless should be incorporated by implication into the Harksen v Lane test.299

Being a non-discrimination principle, reasonable accommodation cannot be confined only to affirmative-action duties in Chapter III of the EEA, but also appears in Chapter II of the EEA as an implied duty when determining unfair discrimination in section 6, while its ultimate source is section 9 of the Constitution.300

In MEC for Education: Kwazulu-Natal v Pillay301 _{the CC gave reasonable}

accommodation its most explicit recognition to date as a non-discrimination and equality principle, although in a context not related to the workplace.302 _{The main}

concern in Pillay was whether by refusing to allow a pupil to wear a nose stud, on the basis that this was required by the school’s Code of Conduct in order that uniformity and discipline be maintained, in fact constituted unfair discrimination under section 6 of the Promotion of Equality and Prevention of Unfair Discrimination Act303 _{on grounds}

of religion and culture.304 _{The court ruled that by refusing to allow the pupil to wear the}

stud amounted to a considerable infringement of the pupil’s religious and cultural identity, as well as a denial of equality in that she was being required to comply with

295 _Ibid. 296 _Ibid. 297 _Ibid.

298 _{(CCT9/97) [1997] ZACC 12 (7 October 1997).} 299 _{Klinck et al Employment Equity Law (2001) 7-3.} 300 _{Klinck et al Employment Equity Law 7-4.} 301 _{(CCT51/06) [2007] ZACC 21 (5 October 2007).} 302 _{Klinck et al Employment Equity Law 7-5.} 303 Hereafter referred to as “the PEPUDA”.

mainstream culture.305 _{Allowing the stud would not have imposed an undue burden}

on the school, while reasonable accommodation would have been accomplished by allowing Sunali to wear the nose stud, which resulted in the CC confirming the High Court’s finding of unfair discrimination.306 _{While observations and pronouncements}

that were made by the court in Pillay concerning reasonable accommodation, were intended for PEDUDA, they most definitely add to an understanding of the scope and application of reasonable accommodation under both the Constitution and the EEA.307

Langa CJ, commented that the school had failed to accommodate diversity and located reasonable accommodation as a principle that should be invoked not only when determining unfairness but also proportionality. 308

In Standard Bank of South Africa v Commission for Conciliation Mediation and

Arbitration309 _{the LC held that the behaviour of the bank in dismissing an employee}

due to incapacity comprised unfair discrimination under the EEA for failure to provide reasonable accommodation.310 _{The employee had severely injured her back as a}

result of a motor-vehicle accident and consequently experienced constant back pain, which resulted in her inability to discharge her usual duties as a mobile-home loan consultant.311 _{It was further accepted by all parties that she suffered from a disability}

within the meaning contemplated by section 6(1) of the EEA, and was therefore permitted protection against unfair discrimination.312 _{To this end a panel of doctors}

had subsequently recommended that modifications be made to the employee’s work station and, together with posture training, would enable the employee to perform her job and remain in her position.313 _{The bank, however, failed to implement the}

recommendations or to engage with the employee and consult with an occupational therapist as suggested, in order to redesign the employee’s workstation in order to make adjustments that would enable the employee to discharge her duties.314 _Further

305 _{(CCT51/06) [2007] ZACC 21 [85]; Klinck et al Employment Equity Law 7-6.} 306 _{(CCT51/06) [2007] ZACC 21 [112].}

307 _{Klinck et al Employment Equity Law 7-6.}

308 _{(CCT51/06) [2007] ZACC 21 [72-77]; Klinck et al Employment Equity Law 7-7.} 309 _{(JR662/06) [2007] ZALC 98 (25 December 2007).}

310 _{(JR662/06) [2007] ZALC 98 51 143-146; Klinck et al Employment Equity Law 7-8.} 311 _{(JR662/06) [2007] ZALC 98 2 2; Klinck et al Employment Equity Law 7-8.}

312 _{(JR662/06) [2007] ZALC 98 8 24; Klinck et al Employment Equity Law 7-8(1).} 313 _Ibid.

to the above, the bank was not prepared to pay for an assessment by an occupational therapist, provide the employee with a headset as requested, or to offer the employee an alternative to dismissal, such as a half-day position.315 _{The court found that the cost}

of implementing the type of reasonable accommodation that was being sought, would have been infinitesimal and not constitute undue hardship when juxtaposed with the resources at the command of the bank.316 _{The court, after having outlined the steps}

that should precede a dismissal on the basis of incapacity, ruled that the bank had failed to accommodate Ferreira and discharged the onus of proving that any of the suggested adjustments would have resulted in unjustified hardship. As a result it was found that the bank had discriminated against Ferreira.317

4.4 CONCLUSION

In this chapter the idea of unfair discrimination was introduced, while also bearing in mind that different requirements need to be satisfied in order for an employee to establish discrimination.318 _{If an employee is successful in establishing either direct or}

indirect discrimination in an employment policy or practice, the next question is whether the discrimination is unfair, as this concerns the possible defences available to employers faced with discrimination claims.319 _{The employer could firstly attempt to}

show that there had in fact been no differentiation or, secondly, the employer may attempt to break the link between the differentiation and the suspected ground of discrimination, as discrimination only exists if the employee can show that the reason for the differentiation is one of the listed grounds, or is founded on an unlisted ground that would pass the Harksen v Lane test.320 _{Thirdly, if discrimination is connected to a}

prohibited ground of discrimination, the employer may still succeed in justifying that discrimination.321 _{Another recurring theme is that an employer will be unable to use a}

defence if it can reasonably accommodate the employee through, for example, a reorganisation of work or job assignments.322 _{This entails that in order to qualify as an}

315 _{(JR662/06) [2007] ZALC 98 50 140; Klinck et al Employment Equity Law 7-8(1).} 316 _{(JR662/06) [2007] ZALC 98 49 137; Klinck et al Employment Equity Law 7-8(1).} 317 _{(JR662/06) [2007] ZALC 98 50 140.}

318 _{Dupper et al Essential Employment Discrimination Law 65.} 319 _Ibid.

320 _{Dupper et al Essential Employment Discrimination Law 95-96.} 321 _Ibid.

inherent requirement, the possibility of reasonable accommodation of people who do not meet the requirement is excluded.323 _{In Independent Municipal and Allied Union v}

Witzenburg Municipality324 _{the LAC observed that reasonable accommodation was,}

foremost, a constitutional principle which is implied in the determination of unfair discrimination, and that it had application not only to the EEA, but also to the LRA.325

323 _Ibid.

324 _{(CA08/08) [2012] ZALAC 1 (13 February 2012).}