Disability in Times of Emergency: Exponential Inequality and the Role of Reasonable Accommodation Duties

This chapter explores whether the 'traditional' reasonable accommodation duty is 'fit for purpose' in times of crisis and whether variations of this duty might be better suited to the task. The reasonable accommodation obligation requires duty-bearers to take disability into account, and to make an adjustment, alteration, or accommodation to their standard practices, policies, and structures in order to meet the needs of a particular disabled individual. One limitation of the 'traditional' reasonable accommodation duty is that it is ex post, in that it is triggered only when an individual indicates that they are facing a barrier. Other types of reasonable accommodation duties adopt a more pro-active or ex ante approach. One example is the anticipatory reasonable adjustment duty in the Equality Act 2010. This requires duty-bearers to consider the foreseeable needs of disabled people in advance of an individual request being made. There is little evidence of Covid-19-related litigation based on the 'traditional' ex post reasonable accommodation duty. In contrast, the ex ante anticipatory reasonable adjustment duty in the Equality Act 2010 has been heavily used during the Covid-19 crisis. The fact that it focuses attention on what duty-bearers should have been doing to avoid creating disadvantage, rather than on simply what they can do to remove it once in place, is perhaps more useful in times of crisis. The chapter nevertheless finds that there is much more that needs to be done to build a legal framework that robustly embeds disability equality.