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Accessibility In The Workplace: What Businesses Need To Know: Part 2

As we noted in Part 1 of our series, there are strong business incentives to invest in accessible IT in order to recruit and retain employees with disabilities. However, aside from the business imperatives for ensuring workplace accessibility, businesses should also consider the compliance landscape — especially national equality laws. These too argue in favor of deploying accessible IT.

The compliance landscape

In many jurisdictions, equality laws place affirmative obligations on private companies, as employers, to protect their employees from discrimination on the grounds of a disability. Equality laws (and their equivalent, anti-discrimination laws) expect employers to make “reasonable accommodations” or “reasonable adjustments” in the workplace for employees with disabilities.

Reasonable adjustments are proportionate modifications designed to ensure that persons with disabilities can enjoy access to the workplace on an equal footing with employees without disabilities, while also ensuring the business can still operate effectively. Failure to make reasonable adjustments may constitute a form of discrimination, both under national laws and under Article 5 of the UN’s Convention on the Rights of Persons with Disabilities (“CRPD”).

Express duties on employers to make reasonable adjustments for employees are found in national legislation in jurisdictions, including the UK (e.g., the Equality Act 2010), Italy (e.g., Italian Legislative Decree no. 216/2003, Spain (e.g., Title I; Spain’s Occupational Risk Prevention Act), Australia (e.g. the Disability Discrimination Act 1992) and the U.S. (e.g., Americans with Disabilities Act 1990) In some countries, such as Italy, there is a specific obligation on employers to provide hardware / software suitable for each disability (as set out in Law no. 4/2004).

Failure to comply with national equality laws can expose private companies to the risk of employee claims. National courts / tribunals will assess on a case-by-case basis whether a particular adjustment is reasonable in order to make a workplace more inclusive. Courts are likely to be intolerant of perceived workplace discrimination. Moreover, in an age of rapid technological innovation, as accessible IT becomes more readily available to companies, claimants may feel emboldened to challenge in national forums the limits of what adjustments are “reasonable” in the provision of IT solutions.

Increased regulatory pressure on businesses is inevitable. As of February 2018, 175 countries have ratified the CRPD, which recognizes accessibility of IT as a right in itself (Article 9) and also as an enabler of other human rights. With this increased focus at a global level, it is likely that further legislative developments from CPRD member states will follow. One such pipeline development is France’s “El Khomri” law, which — from August 2019 — will require employers to ensure the accessibility of software installed on the workstations of people with disabilities where this is necessary to the performance of their duties.

There may also be an upturn in the number of “softer” governmental initiatives attempting to drive business accessibility standards. The UK offers a good example with its “Disability Confident” Scheme. This government scheme was launched in 2013 as a voluntary arrangement, focusing on working with employers to challenge attitudes to disability, remove workplace obstacles and increase opportunities for persons with disabilities to reach their potential. However, following its re-launch in 2016, the scheme appears to be evolving in a manner that may directly impact the business bottom-line. The Minister for Disabled People, Health and Work has indicated that in future, the “Disability Confident” label is expected to function as a product accreditation mark, and “Disability Confident” employers in the UK will be given preference in government procurement processes. The Minister recently called for more businesses to sign up to this trail-blazing scheme.

© 2018 Covington & Burling LLP

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About this Author

Fredericka Argent, Intellectual property and data protection attorney, Covington
Associate

Fredericka Argent is an associate in the technology and media practice group, having joined the firm as a trainee solicitor in 2012.

Ms. Argent advises emerging and leading companies on intellectual property and data protection issues, including copyright, trademarks, e-commerce and piracy.  She has experience advising companies in the technology, pharmaceutical, luxury brands and media sectors. Her practice encompasses regulatory compliance and advisory work.  She regularly provides strategic advice to global companies on complying with data protection laws in...

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