A Framework for Considering Disability Accessibility and Reasonable Accommodation
humanITy Paper
Date: 12/12/2007
Article
A. Summary of Definitions
1. Disability: A functional limitation resulting from a physical or mental condition. There are a wide variety of more detailed definitions but their details do not affect the way in which this framework operates.
2. Specification: The demographic extent (who) and performance objectives (what) specified by the author of a product or service. The importance of a specification is that it defines what the author wants and how the author will know if the objective has been achieved. The specification has two parts:
- Demographic: the number and type of people to be served;
- Functionality: the performance specification of outputs resulting from inputs.
3. Usability: The measurement of the validity of the specification in terms of demographics (who) and performance (to what extent). This definition is intended to tie usability to task completion; who can do what and to what extent can they do what the author intends? This means that usability is not a special phenomenon that relates to special cases; it is a general phenomenon which relates the specification to outputs. The specification may be based upon peer normative activities of a demographic group or profession.
4. Accessibility: The extent to which disability is taken into account in defining the specification. This assumes that accessibility is a specific facet of usability defined by the demographic.
5. Corporate Purpose: The reason why an organisation exists.
- In the private sector the most common corporate purpose is to maximise return on investment with providing goods and services as subsidiary;
- In the public sector the corporate purpose is frequently hybrid, combining direct citizen benefit with indirect citizen benefit through the optimal use of resources;
- The corporate purpose of the 'Third sector' is identical to the hybrid purpose of the public sector.
6. Market: The market for a product or service is primarily the demographic defined by the specification. Goods and services may attract markets outside the specification.
7. Peer Normative: The use of a product or service by a defined percentage of a defined demographic group. The percentage for peer normative activities can be set by legislation/regulation or by a self governing body; this is also true for what activities are defined as peer normative as these change over time. Most people belong to a huge variety of demographic groups which each have their own peer norms, including:
- Education and Training;
- Employment, vocations and professions;
- Leisure and entertainment;
- Citizenship;
- Lifestyle;
- The results of external forces (disability, poverty, geography);
- The result of choice (religion, self identity).
There is an important distinction between what is peer normative and the imposition of uniformity on a demographic group.
8. Statutory/Regulatory Conditions: These are conditions imposed by a legitimate authority to modify a corporate purpose by stipulating a change to a specification. The more peer normative an activity the more justified, all other factors being equal, is the use of statutory/regulatory conditions.
9. Universal Service: The use of statutory/regulatory conditions to impose an obligation on a supplier to define the specification of a product or service to be near 100% peer normative. Universal service frameworks may deliberately or accidentally encompass that part of the demographic which has accessibility requirements because of a disability.
10. Reasonable Adjustment/Accommodation. The stipulation by legislation/regulation that a corporate purpose be modified to take account of the needs of a demographically defined group. In this context, a reasonable adjustment/accommodation relates to the accessibility requirements of disabled people. The requirement for such an adjustment should be based upon a combination of the following:
- The cost to the organisation of modifying its corporate objective;
- The benefit to the defined demographic group;
- The extent to which the use of the product or service is peer normative;
- The nature of the specification.
11. Optimal Reasonable Adjustment/Accommodation: The modification of a corporate purpose which balances the loss of marginal profit with up-take by the demographic group for which the adjustment was specified. This is frequently referred to as the "business case for accessibility".
B. The Private Sector
12. As already noted, it is not the purpose of this framework to define disability; any commonly used definition would be adequate for the purposes of this discussion.
13. The central question to be addressed is the nature of a 'reasonable' accommodation/adjustment imposed by the public sector on the private sector.
14. Given that commercial organisations are created to fulfil their legally constituted corporate objective of maximising profit, any imposition of legislative/regulatory limits must be justified by a greater good, i.e. the freedom of the people who benefit from the statutory intervention should be recognisably greater than the abridgement of the freedom of the organisation to meet its corporate objective. This assessment is only possible if the cost to the organisation and the benefit to the demographic group can be measured; this is why the specification is so important. An alternative approach is for legislation/regulation to rank rights.
15. In making a justification for an adjustment (see Para 11 above), the cost/benefit needs to be analysed. For example, if the product is the provision of a web site to enable dealers in the visual arts to view and make bids for pictures, whether it should be made accessible to blind people depends upon the cost to the producers and the benefit to blind consumers where the latter may be measured in terms of its peer normativity:
- The specification of the product will probably not include blind people;
- The cost of describing the pictures may be greater than the cost of displaying them, i.e. the 'picture tax' may be more than 100% of the product value;
- The number of beneficiaries may be very small because the activity is not peer normative either for society as a whole or for the specific demographic of blind people.
It may therefore be concluded that describing the pictures on this web site is not a reasonable adjustment. A similar argument might be made in considering the obligations on a music store to 'describe' its contents for profoundly deaf people.
16. At a less clear-cut level, reasonable adjustment arguments are usually based on what is called the "business case for accessibility" which stipulates that if the specification of a product or service is extended to include accessibility the loss of marginal profit will be exceeded by the increased volume of sales. This argument only works where the increase in profit resulting from an extension of a specification is greater than the increase in profit for other uses of the same capital. Another common mistake is to overestimate the size of the increased market, with turnover and profit projections far exceeding the actuals. The supposed business case usually contains one of the following two errors;
First, the assumption that there is no competition for capital.
Secondly, that the number of beneficiaries and the project profits from them are far higher than they turn out to be.
17. Given the considerations in Para's 13-16 it seems unreasonable to base a right of access to a product or service on an unmediated right.
18. A mediated right based on the concept of reasonable adjustment/accommodation, which takes the factors in Para's 10-11 into account provides a more balanced approach to the rights of organisations to meet their legitimate corporate objectives and the rights of individuals and groups to behave peer normatively. The following are some suggested guiding principles:
- The more peer normative an activity, the greater the justification for imposing an adjustment/accommodation, e.g. access to public utilities is more peer normative than owning a luxury yacht;
- The lower the cost/benefit of an adjustment, the less justified it is;
- The more severe the obstacles to peer normative activity, the greater the need for public sector intervention;
- The greater the gap between optimal adjustment/accommodation and the full cost, the greater the requirement for public sector intervention;
- Any legislation/regulation to impose an adjustment to a specification for the purposes of extending it to a specific demographic group must be imposed transparently on a production sector, e.g. as a legislative stipulation, a regulatory framework, a condition of licence, including any differential provisions which take account, for example, of the size of different participants in a sector.
19. Factors c) and d) in Para 18 are crucial to an understanding of the problems of what is reasonable in making adjustments/accommodations. In the context of disability principle c) means that where the severity of disability makes the accessibility gap particularly wide, the public sector has a proportionate obligation to act; principle d) means that the public sector cannot simply legislate/regulate an end and expect an organisation to abridge its corporate objective indeterminately or indefinitely. Just as, for example, retailers are not expected to mitigate the problem of poverty by lowering their standard prices for poor people, so the private sector should not have a blanket obligation to mitigate the problems of disability.
20. Frequently the public sector tries to evade its obligations in Para's 18-19 by advancing the merits of the "business case for accessibility" discussed in Para 16.
C. The Public Sector
21. The public sector must keep its own laws and regulations.
22. Specifications must correspond with legislation/regulation.
23. Where a law or regulation makes a specific reference to the specification of a product or service the primary objective of its fulfilment must over-ride the secondary benefit of, for example, cost saving.
24. The implementation of legislative/regulatory provisions should not be dependent on competition for capital.
25. The primary arguments for accessibility to be explicitly included in the specification of public sector products and services are:
- A specified or a presumed right of equal citizenship;
- The non discriminatory provision of products and services;
- Universal taxation.
D. Conclusions
26. Any legal framework for accessibility should not be based on the assertion of an indiscriminate right by every disabled person to enjoy access to every product and service, regardless of the cost to the supplier and the benefit to the consumer.
27. The "business case for accessibility" in an environment of competition for capital is deeply flawed.
28. The public sector has an obligation to provide proportionate means to achieve its legislative/regulatory ends.
29. Where a reasonable adjustment/accommodation is onerous on the private sector supplier, the starting point should be a public/private partnership which might involve:
- The producer;
- The public sector;
- 'Third sector' participants whose legal objectives correspond with the beneficiary demographic group.
30. Finally, the Third Sector delivery of products and services should not be a means by which Government evades its responsibility for funding where a business case clearly does not exist.