Reasonable Accommodation as an Extension of Anti-discrimination Doctrine

Abstract

The Act on Eliminating Discrimination against Persons with Disabilities and the Amended Act on Employment Promotion of Persons with Disabilities in 2016 introduced into Japan the principle that there should be reasonable accommodation toward eliminating social barriers faced by persons with disabilities. However, there is doubt whether reasonable accommodation is a right guaranteed by the equality provision under Article Fourteen of the Constitution. In the U. S., there are similar arguments regarding affirmative and negative theories about reasonable accommodation as a right. The purpose of this article is to advocate reasonable accommodation as a constitutional right. The methodology is to categorize the theories that advocate denying the right of reasonable accommodation under the equal protection clause into three categories : （１） those contrary to similar treatment ; （２） those against the merit system ; and （３） those contradicting the rationality of capitalism. The article then presents evidence to disprove these three theories. Consequently, in reality, traditional anti-discrimination doctrine requires not only similar treatment but also differential treatment for minorities. According to provisions of the ADA, reasonable accommodation does not ignore merit systems and capitalist rationality, showing that reasonable accommodation does not violate the Constitution. This analysis can serve as an argument that reasonable accommodation is a right derived from the Constitution of Japan similar to that of the equality clause in the U. S.