障害者に対する雇用上の「便宜的措置義務」とその制約法理 : アメリカ・カナダの比較研究(五)

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Focus of this study is on clarifying the concepts of duty of reasonable accommodation for persons with disabilities. The duty is an obligation imposed employer, and sometimes union, to take reasonable steps to accommodate employee's disability when s/he has suffered or will suffer discrimination from a prima facie neutral working rule. However, employer does not have the duty if accommodation would impose "undue hardship" or un"reasonable" burden on employers and so on. The study hypothesizes the concepts of "undue hardship" and "reasonable (ness)" may indicate the extent of tolerance of a society for persons with disabilities and attempts to clarify the homogeneities and heterogeneities of the tolerances of two countries from comparative perspective. Chapter 5 of this monograph focuses on the study of reasonable accommodation under the Rehabilitation Act in the United States. This part of Chapter 5 explores judiciary frames of the duty of reasonable accommodation for persons with disabilities under section 501 and 504 of the Act, and especially examines the requirement of "otherwise qualified person with disability." The concept of "otherwise qualified persons with disabilities" is divided into two sub-concepts: "person with disabilities" and "otherwise qualified." After analyzing the requirement of "person with disabilities" which is defined physical and mental "impairment" which "substantially limits" one or more "major life activities," it clarifies that the courts' interpretation of the words tends to substantially exclude some person with a certain impairment from the "person with disability." Then, examining the requirement of "the otherwise qualified" through the "essential functions of the job" including "safety," "undue hardship," and "reasonable (ness)," it clarifies that courts tend not to impose the burdensome obligation on employer. In terms of "undue hardship," courts have not made more effort to scrutinize the requirement under the Rehabilitation Act than the duty of reasonable accommodation with religious discrimination, but take some theories regarding the duty over the religious accommodation. For example, courts in both take a consistent position over not only religious discrimination but also the Rehabilitation Act that reassignment as duty to accommodate constitutes undue hardship if reassignment violates seniority rights under collective agreement. Meanwhile, there are some inconsistencies. Courts have adopted that doubling cost up for accommodation to require other employee to enable person with disability to perform a job impose undue hardship while courts' holdings under religious discrimination take that accommodation is undue hardship if employer bears more than de minimis cost. Concept of "reasonableness" under disability discrimination is much less clear than that under religious discrimination. The reasonable(ness) under religious discrimination means mutual and interactive process requirement of accommodation for both employer and employee or/and a certain standard of employer's obligation to accommodate employee, regarding whether accommodation employer offers is enable employee to resolve the problem with his/her religious faith. However, courts basically under-stand that "undue hardship" and "reasonable (ness)" under disability discrimination are the same concepts. This study clarifies the theories above stem from that courts attempt to strike balance between equal opportunity for all persons and positive obligation for persons with disabilities. However, this tendency has been gradually changed since the late 80's, and courts have attempted to more elaborate and dedicate to appropriately strike the balance, and begun to admit employer's duties of taking reassignment to other section or light duty into account and of assigning part-time supplemental personnel to person with disability, which courts had rarely not adopted.
北海学園大学の論文

障害者に対する雇用上の「便宜的措置義務」とその制約法理 : アメリカ・カナダの比較研究(五)

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