Nearly two years ago, I received an email from a young disabled man from Serbia. He found my contact online and decided to write to me asking for legal advice regarding the problem he was facing at his university in Serbia. He asked the university to accommodate his request to take the oral exam via Teams or Zoom. He knew this was possible to do since the university had been doing it regularly during the pandemic. However, once the pandemic was over, the university returned to its traditional way of conducting the exams. The reason why he insisted on being examined online rather than in-person is the mental health issues he was experiencing. Travelling on the bus for several hours to get from his town to the university would cause him anxiety coupled with a risk of contracting COVID-19 as he was identified as having a heightened vulnerability to COVID-19.
The university refused to accommodate his request requiring his in-person presence to take the exam. The refusal of the university to accommodate would likely amount to disability-based discrimination under the UN Convention on the Rights of Persons with Disabilities (in further text CRPD) which recognizes ‘a denial of reasonable accommodation’ as a specific form of disability-based discrimination. I helped him draft the complaint claiming that he was discriminated against by his university refusing to provide him with reasonable accommodations citing the relevant provisions of the UN Convention and he filed it to the Commissioner for Equality Protection. The Convention defines reasonable accommodation as:
…necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms
(CRPD, Article 2(4))
Unfortunately, the decision of the Commissioner for Equality Protection found no discriminatory act. Why did this happen?
In their decision, the Commissioner for Equality Protection cited the definition of discrimination from the national law. Important to say is that the Serbian national anti-discrimination legal framework does not recognize this form of disability discrimination. The Law on Prohibition of Discrimination only recognizes direct and indirect discrimination, as well as the Law on Preventing Discrimination of Persons with Disabilities. However, the Republic of Serbia has been legally obliged by the norms of the CRPD since it ratified it back in 2009. That means that the UN Convention became part of the national legal framework and should be applied directly where relevant. However, the Commissioner’s decision completely ignored the CRPD as if it didn’t exist.
To think that Serbian institutions are not aware of this obligation would be misplaced. In 2016, Serbia’s progress in implementing the CRPD was reviewed by the CRPD Committee (an independent expert body tasked to monitor the implementation of the Convention).
One of those recommendations was to ‘ensure that the relevant laws and regulations define the denial of reasonable accommodation as a form of discrimination on grounds of disability’ (Committee on the Rights of Persons with Disabilities, 2016, para. 10).
It’s been 7 years since the set of recommendations was issued to Serbia and the Serbian Government still hasn’t implemented the recommendation mentioned above. The Law on Prohibition of Discrimination was amended back in 2021 but the Government decided to ignore the recommendation to include a denial of reasonable accommodation among discrimination definitions and the opportunity was missed. Knowing that the laws are not being amended every year, it may be years before a new opportunity arises to resolve this issue.
But, why is the concept of ‘reasonable accommodation’ so important and why it should be among the top priorities of the Government to include a denial of reasonable accommodation in all spheres of life as a special form of disability-based discrimination? First, it is important to make a distinction between accessibility and reasonable accommodations. While accessibility is the subject of progressive realization aiming to gradually make a whole society more accessible for all disabled people which requires thoughtful planning and budget allocations, the obligation to provide reasonable accommodation so that concrete individual can effectively exercise their rights has an immediate effect.
The way how provision of reasonable accommodation works in practice is that a disabled individual who considers that some adjustments are needed to realise the particular right or obtain a service can require the organisation which provides the service to provide certain adjustments. If the organisation refuses, then a disabled client can take them to court claiming they suffered discrimination. It is then up to the Court whether the request was reasonable or it represented an undue burden for a defendant. Whether a request for accommodations is reasonable or not depends on several factors, for example, the practicality and feasibility of adjustments, whether the adjustments will eliminate entirely the barriers the disabled person was facing, the costs involved and the size and financial capacity of the organisation that was required to provide the adjustments, potential adverse effects on organisation’s operations, etc.
Living in England I became aware of the potential of reasonable accommodations or reasonable adjustments (the term used in English law), to transform society and disabled people’s lives. The concept of reasonable accommodations was first introduced in US law and then in English law way back in 1995 through the Disability Discrimination Act. Today it is the Equality Act (2010) that regulates the provision of reasonable adjustments in England. These legal acts that predate the CRPD served as an inspiration for its text as we know it today (Lawson, 2008).
In all my workplaces in England, I was provided with some reasonable accommodations that helped me to respond to my work duties effectively. While I was working at the university, I was provided with a lightweight laptop that I could carry around easily, a mobility scooter that helped me navigate large distances on campus and software that converts voice into text when experiencing fatigue of hands. At my current job, I requested my employer to paint one accessible parking bay in the vicinity of the building where I work considering that the regular staff parking was quite far and uphill. I didn’t need to communicate these needs in the process of recruitment before I got those jobs. I only made those requests once I was on the job and once I realised what was needed. The provision of equipment or adaptations of the workplaces are not the only things that may count as reasonable accommodations. Adjustments may include changes in terms of how the job is performed. Some colleagues are allowed to work entirely from home since their health condition makes it difficult for them to commute to work.
The obligation to provide reasonable accommodations extends way beyond the workplace and covers all other spheres of life when services for the public are provided including housing, education, healthcare, and service sectors like transport, shops, banks, cinemas, council offices, and leisure centres. A blatant example of denial of reasonable accommodation is the refusal of public transport drivers to assist disabled passengers to get on buses, which happens way too often to disabled people in Serbia.
Examples of adjustments that are provided in the healthcare system in the UK include sending medical letters in an easy-to-read format to patients with learning difficulties or allocating more time for their appointments with the doctors so that there is enough time to explain to them what is happening in a manner understandable to them or provision of sign language in medical appointments with deaf patients, among many other.
Thus, the obligation to provide reasonable adjustments to disabled people to help them exercise their rights effectively has the potential to transform the whole society and the way disabled people are treated.
There are two possible reasons why the Serbian Government is reluctant to introduce the concept of reasonable accommodation in our legal framework. One possible reason is that the Government was aware that by recognizing this form of discrimination in the national anti-discrimination framework, both the public and private sectors would be required to transform their operations and allocated budgets for the provision of reasonable accommodation. In addition, disabled people would acquire powerful legal tools to make employers and other providers of services accommodate their needs. If they were not willing to make this shift of power, then the decision to ignore CRPD’s Committee recommendation may have been intentional.
The other possible reason is that the Government simply lacked an understanding of what is actually required.
When the UN Convention on the Rights of Persons with Disabilities (CRPD) was ratified by the Serbian Parliament back in 2008, the Law on Confirming the UN Convention was adopted which included the translation of the Convention’s text. The concept of ‘reasonable accommodation’ was translated as ‘reasonable lodging’ in the Serbian language (srb. Razumni smeštaj) which demonstrates a complete lack of understanding of what is actually meant by this phrase, let alone how it is supposed to be operationalized in the legal framework and implemented (see for example Article 24 (2) (c); (5) or Article 27 (1) (i)). It is obvious that ‘reasonable accommodation’ doesn’t refer to lodging but to adjustments.
Whichever reason underlies the Government’s inaction, the prospect for substantive equality of disabled people in society is bleak. However, if the disability movement develops an understanding of the potential of reasonable accommodation to transform society, it may decide to prioritize it in its advocacy efforts. Until then, exclusionary treatments such as the one suffered by the young man from the beginning of this article, will remain a pervasive practice.
References
Committee on the Rights of Persons with Disabilities 2016. Concluding observations on the initial report of Serbia.
Lawson, A. 2008. Disability and Equality Law in Britain: The Role of Reasonable Adjustment. Bloomsbury Publishing.
