Abstract: Both reasonable accommodation and accessibility are crucial concepts in the UN Convention- on the Rights of Persons with Disabilities. Those two concepts promote each other and should develop as a whole. State parties of the Convention undertake immediate obligations to ensure the provision of reasonable accommodation, which has advantages such as characteristics of subjective rights, in-dividualization, justiciability and convenience, making it a flexible tool for the protection of rights. It can serve as a supplement to insufficient accessibility and play a unique role in other areas which are irrelevant to accessibility, so as to satisfy the special needs of certain subjects to the largest extent. The State Party has an ex ante and progressive obligations to the realization of the accessibility construction, which has advantages of comman design, large scale, economization and no need for individualization consideration. In China, various forms of reasonable accommodation have been applied in employment, but they have disadvantages of contingency, randomness, simplicity and lack of systematic support. In the process of further promoting the employment of people with disabilities in China, in addition to strengthening accessibility construction, we must fully understand and flexibly adopt reasonable accommodation.

 

Keywords: Convention on the Rights of Persons with Disabilities    reasonable accommodation    accessibility    employment

 

With the adoption of the Convention on the Rights of Persons with Disabilities (hereinafter referred to as the Convention) in the General Assembly of the United Nations in 2006, reasonable accommodation has become a new concept in international human rights laws.¹ Article 2 of 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.”

 

The meaning of accessibility is clearer than the concept of reasonable accommodation, which the Convention just summarizes and outlines² without giving a clear definition. According to the Convention, both reasonable accommodation and accessibility are designed to eliminate obstacles faced by people with disabilities. With distinct differences in nature, overlapping and different application fields, the two promote each other in practice. Therefore, the promotion of reasonable accommodation and accessibility as a whole is of great significance in promoting and protecting the rights of people with disabilities, including promotion of integrated education and integrated employment.

 

 

 

 

According to the time factor of obligations, there are two types of obligations which contracting States should perform: one is the immediate obligation, or obligation of immediate implementation; the other is progressive obligation, or obligation for progressive implementation. The former refers to obligations that contracting States should perform immediately after being joining the Convention and the latter refers to the obligations that contracting States can gradually perform.³ Paragraph 1 of Article 2 in the International Covenant on Economic, Social and Cultural Rights stip-ulates that contracting States should take steps to “gradually achieve full realization of the rights recognized in this convention,” which is a classical expression of progres-sive obligation.⁴ The obligations of state parties under the International Covenant on Civil and Political Rights are generally regarded as immediate obligations, in which elimination of discrimination is an important element.

 

According to the Convention, providing reasonable accommodation is not only a concrete measure to eliminate discrimination, but also an immediate obligation. Article 2 of the Convention clearly stipulates that “discrimination based on disability” means any distinction, exclusion or limitation made on the basis of disability, whose purpose or effect to undermine or cancel the recognition, enjoyment or exercising of any human right or fundamental freedom. It specifically points out that “discrimination based on disability includes all forms of discrimination, including refusal to provide reasonable accommodation.” Article 5 regarding equality and non-discrimination in the Convention further stipulates that “in order to promote equality and eliminate discrimination, the contracting States should take all the appropriate measures to ensure reasonable accommodation.” Based on a systematic analysis of the articles above, we can conclude that ensuring the provision of reasonable accommodation is an important means for contracting states to promote equality and to eliminate discrimination. The refusal to provide reasonable accommodation constitutes discrimination based on disability and violates the general obligations of the state party. Therefore, the obliga-tion of the state parties for reasonable accommodation is an immediate obligation.

 

According to the Convention, the obligation of the contracting States for to ensure persons with disabilities have access, on an equal basis with others, to the physical environment, , one of the Convention’s basic principles set out in Article 3, has dual attributes of immediate obligation and progressive obligation. On the one hand, Paragraph 1 of Article 4 of the Convention sets forth a number of immediate obligations accessibility on the contracting States for accessibility, including “providing people with disabilities with accessibility information, introducing walking aids and assistive technologies, such as new technologies and other forms of assistance, sup-port services and facilities”. On the other hand, accessibility is regulated mainly in Article 9 of the special clause regarding accessible environmental construction. The preface of the Convention outlines that accessibility involves many areas such as “material, social, economic and cultural environment, health care, education, information and communication.” Paragraph 2 of Article 4 of the Convention further states that “as for economic, social and cultural rights, each contracting State commits to full use of available resources and will take measures within the framework of international cooperation when necessary in order to realize the rights gradually”, which means that state parties can gradually fulfill the obligations of economic, social and cultural rights with maximum use of available resources. Therefore, according to the spirit of the Convention, most of the obligations for accessibility are progressive obligations, especially the reconstruction of completed buildings for accessibility and accessibility in underdeveloped areas involving allocation of social resources and construction planning, which requires the state party to gradually and systematically develop based on available resources.

 

China’s Regulations on Accessible Environmental Construction reflects accessibility’s dual nature of immediate obligation and progressive obligation. Article 9 of Regulations on Accessible Environmental Construction stipulates that “construction, reconstruction and expansion of urban roads, public buildings, public transportation facilities, residential buildings, and residential districts must conform to standards of accessibility construction, which must be fulfilled immediately.” The Regulations on Accessible Environment Construction also specify plenty of obligations which are sup-posed to be fulfilled gradually. For example, “public transportation facilities, such as civil aircrafts, passenger trains, passenger ships, buses, and urban rail transit vehicles, should gradually meet the requirements of accessibility construction”; “construction and development of villages should gradually meet the requirements of accessibility construction”; “for the urban roads, public buildings, public transportation facilities, residential buildings, and residential districts which fail to meet accessibility construc-tion standards, governments at or above the county level should formulate and imple-ment accessibility reconstruction plans.” Gradual implementation means that different obligations can be prioritized. The Regulations on Accessible Environment Construc-tion stipulate institutions and places that should be receive priority during the elimination of obstacles and barriers to accessibility, including “special education, rehabili-tation, social welfare institutions; public service places of State organs; culture, sport, medical and health units;, transportation, finance, postal service, commerce, tourism, etc.” These stipulations reflect accessibility dual nature of immediate and progressive implementation.

 

2. Obligations for particular individuals and obligations for unspecified groups or individualized plans and universal design
 

An essential feature of reasonable accommodation is its individualization, as a result of the focus on diversity of people. It is designed and provided to eliminate the specific obstacles encountered by a particular individual, aimed at the specific needs of a particular individual in a particular case. Therefore, personalized plans should be applied while providing reasonable accommodation. Different from reasonable accommodation which is for particular individuals, accessibility aims at elimination of common obstacles faced by nonspecific groups⁵. Therefore, accessibility technologies and products focus on universal design rather than individualization. According to Article 2 of the Convention, universal design refers to design of products, environ-ments, programs and services that are available to most people, with no adjustments or special designs. In general, although universal design does not rule out provision of assistive facilities for some people with disabilities when necessary, accessibility construction adopting “universal design” focus on commonality and satisfaction of most people’s general needs. Due to its scale, the efficiency in removing obstacles will greatly be increased, but it may be difficult to take every individual’s personality into consideration and it is reluctant to eliminate all obstacles faced by each disabled.

 

 

Since reasonable accommodation aims at specific individuals in a specific situation, that is only when a specific individual encounters specific obstacles in a specific situation, feels and expresses his specific needs, will the specific subject of duty have the obligation to provide specified reasonable accommodation. Therefore, the obliga-tion to provide reasonable accommodation is an ex nunc duty. Accessibility aims at common obstacles faced by unspecified groups.⁶ The obligation of accessibility is an ex ante duty,⁷ that is, to complete accessibility construction and to eliminate relevant obstacles for unspecified groups in advance. For instance, Article 9 of the Regulations on Accessible Environment Construction stipulates “construction, reconstruction and expansion of urban roads, public buildings, public transportation facilities, residential buildings, and residential districts must conform to standards of accessibility construction”, the obligation of accessibility is for nonspecific groups, which should be com-pleted before these unspecified groups use “newly constructed, reconstructed and ex-panded” “roads, public buildings, public transportation facilities, residential buildings, and residential districts.” When some person with disability uses a public building, a public facility or something else, only if there is no accessibility, or the accessibility cannot eliminate the specific obstacle faced by the person, will the subject of duty have the obligation to undertake and perform the obligation to provide reasonable ac-commodation for him.

 

 

In contemporary constitutional theory, constitutional rights are considered to have the dual nature of subjective rights and objective regulations. When constitutional rights are subjective rights, there are clear subjects of the rights, who can directly set forth claims and request the State “to require public power to act or not to.” When constitutional rights are objective regulations, they directly oblige the State and restrict public power to create and maintain conditions favorable to the realization of constitutional rights so as to form an order of objective regulations. When constitutional rights play the role of objective regulations, there is no specific subject of right to claim the rights. Constitutional rights focus on individuals as subjective rights, and overall legal interests or public interest as objective regulations.⁸

 

By using analysis of subjective rights and objective regulations, reasonable accommodation reflects the nature of subjective rights while accessibility demonstrates more value of objective regulations. “Reasonable accommodation” of the Convention entitles every person with disability the right to make subjective claims, and the provisions of national laws in different countries on reasonable accommodation have clear subjects, who enjoy the rights of personal requests and can negotiate with subjects of obligations for provisions of reasonable accommodation. Provisions of the Convention and national laws in different countries are directly used to restrict subjects of obligations, but rarely correspond to specific subjects of rights and do not set forth rights of personal request for specific subjects.

 

Although the individuals’ subjective rights can be derived from the order of ob-jective regulations and the obligation of subjects of public power, to achieve the pur-pose of enabling subjects of rights to have rights to legal claims, objective regulations need to undergo a process of “resubjectivization,” so as to clarify specific rights and obligations, and their relations as well. “Resubjectivization” may even include explicit funding guarantees.⁹ For example, Article 54 of the Law of the People’s Republic of China on the Protection of Persons with Disabilities and Article 20 of the Regulations on Accessible Environment Construction both stipulate that if any person with visual disability takes an exam held by the State, such as all kinds of entrance examinations, vocational qualification examinations and job assignment examinations, exam holders should provide him with Braille or electronic test papers or arrange staff to assist them. The provision defines the subject and content of rights and obligations. If it is regarded as an accessibility requirement, it can be regarded as a “resubjectivization” of objective regulations. Only when provisions on accessibility construction undergo “resubjectivization”, can the subject of the rights be entitled to make demands of the subject of obligation on an individual basis.

 

 

The subjectivity of reasonable accommodation determines its justiciability, which means subjects of rights to reasonable accommodation can not only submit specific claims and requests to the subjects of obligations, but they can also seek external support, including judicial support, when individual requirements are not met. The initiation of judicial proceedings might receive widespread influence and attention from the society, which will have a greater impact on the order of objective regulations. The justiciability of reasonable accommodation has also been confirmed by the Convention. As mentioned above, by placing “guaranteed provision of reasonable accommodation” of state parties in “equality and non-discrimination” clauses, the Convention has successfully included the refusal of subjects of obligations to provide reasonable accommodation in the categories of discrimination and has clarified its justiciability. Unlike reasonable accommodation, accessibility, which aims at providing equal pro-tection for people with disabilities, mainly belongs to objective regulations and has no justiciability without “resubjectivization,” thus it is difficult to obtain judicial protection.

 

 

In a particular case, to judge whether the accommodation is reasonable and whether a liability can be exempted when accommodation has not been provided, all factors of the particular case need to be considered comprehensively for the consideration of individual cases.¹⁰ The obligation for accessibility is determined by the overall planning of different levels of governments within their jurisdiction. Once the government has adopted certain procedures to determine specific tasks to ensure accessibility in the form of laws and regulations, individual case consideration is basically excluded. Taking Article 9 of the Regulations on Accessible Environmental Construction as an example, its stipulation of “construction, reconstruction and expansion of urban roads, public buildings, public transportation facilities, residential buildings, and residential districts must conform with standards of accessibility” means all the construction, reconstruction and expansion of urban roads, public buildings, public transportation facilities, residential buildings, and residential districts should be accessible, with the consideration of individual cases not needed, but the construction work cannot seek exemption from the obligation of accessibility on the grounds of heavy economic burden or backward technology. It can be seen that although the obligation of accessibility is progressive, economic development of society and the order of re-source allocation need to be considered. However, once the laws, regulations, and policies clarify a specific obligation for accessibility, the subject of the obligation cannot request individual case consideration and liability exemption. In other words, accessi-bility requires overall consideration at the level of laws, regulations and policies, and excludes individual case considerations at the implementation level.

 

 

From the obligatory provisions of international human rights laws, obligations concerning actions and results can be derived. The obligation for action means the obligation to take steps and measures, while the obligation for results is the obligation to achieve goals and results.¹¹ Some obligations emphasize actions such as “allowing usage of sign language, braille, supplementary and alternative forms of communica-tion, and all of other accessible means, modes, and modes of communication chosen by people with disabilities in formal events” and some obligations emphasize certain achievements, such as “to ensure that people with disabilities can exercise trade union rights equally.” Most obligations include both the requirement for actions and results.

 

Fulfilling the obligation for accessibility is evaluated by the achieving of accessibility, but it also includes the obligation to take actions in different stages. Based on the characteristics of accessibility, from taking actions to achieve phased results and final results, it might take plenty of time and/or resources to complete large-scale construction for accessibility, while construction on a small-scale that provides acces-sibility may be confronted with problems of uneconomical design and construction. Generally speaking, from taking actions to achieving results, it takes far less time and resources to provide reasonable accommodation than it does accessibility. Therefore, reasonable accommodation is more flexible and effective than accessibility. Due to this, reasonable accommodation can be an effective alternative and supplement where accessibility is insufficient. In some cases, reasonable accommodation can immediately eliminate obstacles, such as the adjustment of event locations to the ground floors, the availability of reading equipment or manual reading in the absence of braille papers. In short, providing reasonable accommodation enables people with disabilities to obtain protection while waiting for accessibility to be provided. However, some flexible reasonable accommodation is a one-time provision, while accessibility allows repeated use.

 

 

Reasonable accommodation is individualized, which determines its negotiability. It means that people with disabilities should make requests to providers for reasonable accommodation of their special needs, and the providers should respond, and clarify the reasons, available resources and means to them within a specified time limit. Then both of them should negotiate to determine the final accommodation that can be provided. Negotiation on reasonable accommodation can be conducted on a one-to-one basis, and each person with disability can be the subject of negotiating on reasonable accommodation. Generally speaking, there is not such individualized negotiability for accessibility. Although it ensures the needs of people with disabilities to participate in and express opinions during the planning and design process of accessibility construction, it cannot consult with each person with disability, because accessibility focuses on universal design and similarity. After the accessible facilities are completed and put into use, the feedback from users’ experience may influence future planning and design of accessibility.

 

 

The applicable fields of reasonable accommodation and accessibility do not over-lap completely, and many fields where reasonable accommodation is applicable are not related to accessibility. To eliminate these obstacles, people with disabilities can only resort to reasonable accommodation. For example, in the field of employment, the adjustment of work equipment, software, working hours and duties to meet specific needs of employees with disabilities is not related to common accessibility. For another example, in order to meet the requirement of a person with disability for the caregiver to stay the night, the regulation of apartment management is adjusted to allow the overnight stay of caregivers in particular cases, which has nothing to do with accessibility design of the apartment building. In other words, accessibility does not completely meet the needs of people with disabilities for reasonable accommodation. The individualization of reasonable accommodation and commonality of accessibility determine the need for reasonable accommodation to meet special needs of people with disabilities on the basis of accessibility.

 

Ⅱ. Reasonable Accommodation and Accessibility Should Be Promoted Together
 

In the process of promoting reasonable accommodation and accessibility, priority should be given to accessibility, and reasonable accommodation be implemented later when accessibility has been basically completed. But this author believes that while accessibility does have advantages of being fundamental and large-scale, the nature and characteristics of reasonable accommodation determine that the two should be promoted together, and reasonable accommodation should be regarded as important as accessibility. The reasons are as follows:

 

First, the state parties undertake immediate obligation to perform reasonable accommodation. If they regard reasonable accommodation as less important and do not perform it immediately, they are violating the obligations of the Convention, which is also discrimination against people with disabilities.

 

Second, characteristics of reasonable accommodation, such as subjective rights, justiciability, individualization and convenience, enable it to be a useful tool to en-sure the rights of people with disabilities and to quickly meet needs of people with disabilities. In particular, the justiciability of reasonable accommodation makes it more advantaged than accessibility. In areas such as construction, transportation and information, reasonable accommodation can be used as a supplement to accessibility in case of insufficient accessibility construction. The more inadequate the accessibility construction is, the more the need for reasonable accommodation.

 

Third, as mentioned above, the applicable fields of reasonable accommodation and accessibility do not completely overlap, which means accessibility to the physical environment cannot completely replace reasonable convenience, and the latter can play a role in fields which are unrelated to accessibility.

 

Fourth, the promotion of reasonable accommodation in certain areas and links may lead to accessibility in more areas. For example, before the college entrance ex-amination provided reasonable accommodation for candidates with disabilities, the colleges lacked the motivation to ensure accessibility due to the limited number of students with disabilities. Since the college entrance examination in 2015 provided reasonable accommodation for candidates with disabilities, more of them have enjoyed measures of reasonable accommodation such as extension of the examination time and use of large-font test papers. In the college entrance examination in 2017, the number of candidates with disabilities who applied for reasonable accommodation reached 5,626.¹² As more candidates with disabilities have been admitted to universities, they have been encountering problems such as a lack of accessibility and the lack of experience and ability of the administrative management system to meet needs of students with disabilities.¹³ Therefore, accessibility in universities has to be put on the agenda. For example, in 2017, Wei Xiang, a student with disability from Gansu province, applied to Tsinghua University for reasonable accommodation, asking the university to help him solve accommodation so that his mother could accompany him at university. Later Tsinghua University included accessible campus construction into the school’s 13th Five-Year Plan, aimed at “providing a more inclusive studying environment for students, so that more people with disabilities can enjoy the best educational resources.” ¹⁴ In the same year, when Zhang Qihui, a student of Minzu University of China, arrived at the university and registered in a wheelchair, the university started to plan and design its accessibility construction after providing her with a series of reasonable accommodations.¹⁵ The move to provide reasonable accommodation for candidates with disabilities based on the college entrance examination has already promoted accessibility in colleges, so it can be assumed that the provision of reasonable accommodation for applicants with disabilities as public servants and other job postings can promote accessibility construction in the workplace. Reasonable accommodation and accessibility construction can promote the development of each other.

 

In summary, both reasonable accommodation and accessibility play an important role in eliminating various social obstacles. Reasonable accommodation, as a new tool to eliminate discrimination, has not yet been widely recognized by the entire society. In fact, it has distinctive features that are different from accessibility. In the process of protecting the rights of people with disabilities, the use of reasonable accommodation, a basic, flexible and effective tool, can eliminate obstacles in individual cases as soon as possible, which can not only improve the efficiency of protecting rights of people with disabilities, but also promote the development of accessibility construction. Therefore, reasonable accommodation and accessibility should be promoted and developed together.

 

 

The concept of reasonable accommodation originated in the field of employment in the United States. When the Civil Rights Act was amended in 1966, an important clause was supplemented, which required employers to tolerate the special needs of employees or potential employees in relation to their religious beliefs and to provide reasonable accommodation for their religious activities. In 1973, when the United States passed its Rehabilitation Act, an important law that specifically protects the rights of people with disabilities and promotes their employment, the concept of reasonable accommodation began to be included in anti-discrimination laws. Later, reasonable accommodation not only continued to develop in the field of employment, but also gradually extended to other areas such as rehabilitation, education, medical care, housing, and public transportation. The development of reasonable accommodation in countries such as Canada and European districts also starts from the field of employment.¹⁶ Even as reasonable accommodation has developed to where it is today, the field of employment is still one of the most common fields of application. To promote diversity and inclusion in the work environment, the International Labor Organization specifically issued guidelines to guide employers in providing reasonable accommodation for employees facing special obstacles on December 3, 2016, the International Day of Persons with Disabilities. Since the Convention began to enter into force in China in 2008, the application of reasonable accommodation in education in China has made outstanding progress in recent years. Of course, it also faces many problems and challenges,¹⁷ and the implementation of reasonable accommodation in employ-ment in China is obviously insufficient, which needs further promotion.

 

 

From the legal perspective, in today’s legal system of China, laws enacted by the National People’s Congress and the Standing Committee of the NPC have not adopted the concept of reasonable accommodation. Although the Law of the People’s Republic of China on the Protection of Persons with Disabilities, which is most closely linked to protecting rights of people with disabilities, was revised once prior to China ratifying the Convention in 2008, the amendment did not include the concept of reasonable accommodation nor define its main connotations. However, the book Paraphrase of People with Disabilities Act of the People’s Republic of China, compiled by the legislative affairs committee of the NPC Standing Committee, stipulates that “discrimination based on disability” in Article 3 of the Law of the People’s Republic of China on the Protection of Persons with Disabilities include all forms of discrimination, including “refusal to provide reasonable accommodation.” What’s more, the definition of “reasonable accommodation” in the book is greatly consistent with that in the Convention,¹⁸ which can serve as an authoritative basis for promoting reasonable accommodation in China. In addition, Article 38 of the Law of the People’s Republic of China on the Protection of Persons with Disabilities stipulates that “units with employees with disabilities should provide appropriate working conditions and labor protection according to the condition of the employees with disabilities, and should reconstruct work place, labor equipment, and living facilities according to actual needs.” The pro-vision implies that the units have the obligation to provide reasonable accommodation, but it doesn’t meet the standards and requirements of the Convention. Article 54 of the Law of the People’s Republic of China on the Protection of Persons with Disabilities and Article 20 of Regulations on Accessible Environment Construction stipulate that all kinds of entrance examinations, vocational qualification examinations and job assignment examinations held by the State should provide braille test papers, electronic test papers or assistance of special personnel for candidates who are visually impaired. If the examination organizations responsible for vocational qualification examinations and job assignment examinations can provide braille test papers, electronic test papers, or assistance of special personnel according to legal requirements and actual needs of people with disabilities, it is also a reflection of reasonable accommodation provided in employment.

 

Different from progresses in education,¹⁹ there is no normative document in the field of employment specifying reasonable accommodation20 at the level of regulations other than law. The Regulations on the Employment of Persons with Disabilities adopted by the State Council in 2007 is the most important administrative regulation regulating employment of people with disabilities, which stipulates a series of em-ployment forms such as proportional employment, concentrated employment and flexible employment for people with disabilities, requires the offering of service and guar-antee for their employment, “forbids discrimination against people with disabilities in employment,” and also stipulates that “employers should provide employees with disabilities with working conditions and labor protection appropriate to their physical conditions,” that “employers should, based on practical condition of employees with disabilities, provide them with training of job duties, inservice, and job transfer.” that the Disabled Persons’ Federation and employment service agencies for people with disabilities should “provide people with disabilities with professional psychological counseling, occupational adaptation assessment, vocational rehabilitation training, job orientation guidance, and employment introduction” and “provide necessary support for employers to employ people with disabilities” for free. All of the above provisions imply providing reasonable accommodation for people with disabilities.

 

 

This article intends to examine reasonable accommodation in employment in China from the following two aspects. The first is the offering of reasonable accommodation for people with disabilities by vocational qualification examinations and job assignment examinations. The second is the offering of reasonable accommodation for people with disabilities at work.

 

Article 54 of the Law of the People’s Republic of China on the Protection of Persons with Disabilities and Article 20 of Regulations on Accessible Environment Construction both stipulate that all kinds of entrance examinations, vocational qualification examinations and job assignment examinations held by the State should “provide braille test papers, electronic test papers or assistance of special personnel for candidates who are visually impaired”. Since the implementation of the Law of the People’s Republic of China on the Protection of Persons with Disabilities and Regulations on Accessible Environment Construction, there have not been cases where braille and electronic test papers are provided for candidates who are visually impaired in ordi-nary examinations, but there are some cases of “assistance by special personnel.” In these cases, whether the convenience provided by the examination organizations are reasonable accommodation still requires analysis. For example, in the National Judicial Examination in 2010, Jin Xi, who was named “China’s first visually impaired lawyer,” successfully applied for conveniences such as a separate examination room, a specially-assigned person to read papers and to write down answers at his dictation on behalf of him.²¹ The convenience of “assistance by special personnel” obtained by Jin Xi, is a statutory obligation of the examination organization and it meets the standard of reasonable accommodation by satisfying the candidate’s needs, so it is reasonable accommodation. However, when a visually impaired candidate in Qingdao, Shandong Province, took part in the National Judicial Examination in 2017, although he had explicitly applied for braille or electronic test papers, the final reply of the Ministry of Justice was that he would take the exam in the forms of separate examination room, assistance by special personnel to read questions and to write down answers at his dic-tation with full-time audio and video recording. In this case, although the examination organization provided the candidate with convenience as stipulated by the law, it was not the convenience that the candidate had applied for. He took the test in the way the organization had arranged, but he was dissatisfied with the arrangement. For example, the candidate believed that he had little time for his answers as it took a long time for questions to be read and there was no extension to the examination time; answering questions by dictation made the subjective questions more difficult than a direct answer; even without the provision of braille or electronic test papers, he should be allowed to answer in braille.²² In this case, it is doubtful that the convenience provided by the National Judicial Examination organization is reasonable accommodation.

 

In recent years, there have been major developments in providing reasonable accommodation in teachers’ qualification accreditation. In 2015, many provinces provided reasonable accommodation and adjusted exam contents and forms in different stages of the exam for candidates with disabilities who took the teachers’ qualification examination. Jiangsu Province also relaxed restrictions on hearing-impaired people to take part in the teachers’ qualification examination, stipulating that they can take the sign language test to replace the Mandarin test. There are hearing impaired people who have successfully obtained the teacher’s qualification certificate.²³ In 2015, Du Yinling and other hearing-impaired persons kept sending letters “suggesting providing reasonable accommodation for hearing-impaired people to take the teachers’ qualification examination” to the Ministry of Education and China Disabled Persons’ Federation in the form of “one person sending one letter per day” for 30 consecutive days, to request cancelling of the Mandarin test, replacement of oral expression with sign language, and cancelling of the requirement for hearing ability in the physical examination standards for hearing-impaired people. On August 4, 2016, the Ministry of Education issued the response of Ministry of Education to No. 9428 advice of the fourth session of the 12th National People’s Congress, saying that the Ministry of Education is actively exploring relevant policies for people with visual disability, hearing disability (including concurrent hearing and speech disability), or speech disability to participate in the teachers’ qualification examination and accreditation, so as to provide them with reasonable accommodation. Since December 2017, Sichuan Province has been actively preparing for the pilot work of assisting hearing-impaired people to partici-pate in qualification accreditation as primary and secondary school teachers, including a special Mandarin test for hearing-impaired people.²⁴ At the beginning of 2018, Wang Ying, a woman from Tianjin, successfully registered in the teachers’ qualification exam. She applied for an electronic test paper and eventually obtained reasonable accommodation for manual reading assistance and extended examination time.²⁵ During the progress of people with disabilities fighting for reasonable accommodation in the teachers’ qualification examination, there are people with visual disability who brought the first lawsuit against discrimination of disability in the teachers’ qualification examination in China. They won their case. In July 2016, Wang Li, a visually impaired girl woman from Yiwu, Zhejiang Province, took the teachers’ qualification examination. While she passed the written exam as well as the interview, she was assessed as unqualified to be a teacher because of her physical examination. In September 2016, Wang Li conducted an administrative proceeding. On June 26, 2017, the verdict was that the decision of the Yiwu Education Bureau to disqualify Wang Li as a teacher must be reversed.²⁶ The development of providing reasonable accommodation in the teachers’ qualification examination reflects the progress of providing reasonable accommodation in the field of employment in China.

 

According to the author’s research, reasonable accommodation provided in the workplace is more diversified and extensive, compared with that provided in vocational qualification exams and job assignment examinations. In practice, reasonable accommodation in the physical environment provided for employees with disabilities is mainly adjustment of office space, such as arranging their workplace on the ground floor and their desks at places which are more accessible to doors and to restrooms. Non-physical reasonable accommodation includes the following forms: (1) adjusting working hours, such as earlier leave for employees with disabilities to avoid the rush hours; (2) adjusting office attendance software, such as picture recognition software and adjustment of the clocking in and out for those who are visually impaired, (3) adjusting work positions and job duties, such as arranging employees with disabilities to be responsible for the parts which they are good at only, instead of all the parts of a task, (4) adjusting work equipment, such as changing work instructions from voice to text display for hearing-impaired attendants, (5) arranging personal assistants, such as arranging a special person to accompany a visually impaired division to perform a task at the designated place, (6) adjusting work systems, such as establishing an apprenticeship system for employees with intellectual disabilities, (7) arranging employment counselors for employees with intellectual disabilities. These various means of reasonable accommodation provide key guarantees for the employment of people with disabilities.

 

 

By analyzing the above reasonable accommodation in employment, the following problems could be found. First, although there are diversified forms of reasonable accommodation that have been adopted, there are not many cases of reasonable accommodation and the number of people with disabilities who understand and can successfully apply for reasonable accommodation is quite limited. Second, the application for and provision of reasonable accommodation are highly contingent and random, depending largely on the skills of people with disabilities in seeking reasonable accommodation, as well as the concepts and attitudes of the competent department and supervisors, without institutional protection. Third, most of the conveniences offered are simple and low-cost, while other complicated means of reasonable accommodation are seldom provided, such as arranging employment counselors, coaches and instructors for people with intellectual disabilities.

 

Reasons for these problems are complex. One is that reasonable accommodation in employment has not been clearly stipulated in any law or regulation in China, thus people with disabilities and employers lack understanding of reasonable accommodation. According to statistics, the proportion of people with disabilities who are employed at the employment age is less than 50 percent in China over the years.²⁷ To promote the employment of people with disabilities, especially the development of in-tegrated employment, it is necessary to clearly stipulate reasonable accommodation in laws and regulations, so as to make better use of reasonable accommodation in prac-tice.

 

(Translated by CHEN Yunqing)

 

* QU Xiangfei ( 曲相霏 ), research fellow of the Institute of International Law, Chinese Academy of Social Sci-ences. The author would like to give gratitude to Professor Yang Songcai, Professor Xiao Shijie and Professor Chen Youwu from Institute for Human Rights in Guangzhou University, and also gives thanks to the Guangzhou Disabled Persons’ Federation for providing the convenience of research.

 

1. For a detailed introduction of “reasonable accommodation”, please refer to Qu Xiangfei, “Reasonable Accom-modation in the Convention on the Rights of Persons with Disabilities — Evaluation Standard and Safeguard Convention on the Rights of Persons with Disabilities — Evaluation Standard and Safeguard,” Tribune of Political Science and Law 2 (2016). and Qu Xiangfei, “The Origin and Historical Development of Reasonable Accommodation,” Human Rights 6 (2015).

 

2. In the Chinese text of the UN, “accessibility” is translated into “barrier-free” while being literally rendered as “could be reached”. The expression of “barrier-free” complies with the Chinese text of the UN.

 

3. Sun Shiyan, The Obligations of State Parties under the International Covenant on Civil and Political Rights (Beijing: Social Sciences Academic Press, 2012), 175. and Nowak Manfred, U.N. Covenant on Civil and Political Rights CCPR Commentary, trans. Sun Shiyan and Bi Xiaoqing (Beijing: SDX Joint Publishing Company, 2008), 63.

 

4. Ibid.

 

5. No.2 General Comment of Committee on the Rights of Persons with Disabilities (CRPD/C/GC/2).

 

6. Ibid.

 

7. Ibid.

 

8. Sun Shiyan, The Obligations of State Parties under the International Covenant on Civil and Political Rights (Beijing: Social Sciences Academic Press, 2012), 19-20, 132-134.

 

9. Sun Shiyan, The Obligations of State Parties under the International Covenant on Civil and Political Rights (Beijing: Social Sciences Academic Press 2012), 136.

 

10. Qu Xiangfei, “Reasonable Accommodation in the Convention on the Rights of Persons with Disabilities — Evaluation Standard and Safeguard the Convention on the Rights of Persons with Disabilities — Evaluation Standard and Safeguard,” Tribune of Political Science and Law 2 (2016).

 

11. Sun Shiyan, The Obligations of State Parties under the International Covenant on Civil and Political Rights (Beijing: Social Sciences Academic Press, 2012), 185.

 

12. 5,626 Candidates with Disabilities Apply for Reasonable Accommodation in the College Entrance Ex-aminations.

 

13. These deficiencies were highlighted in the controversies triggered by the admission of Wang Chong, a freshman of Northeast Normal University. “Northeast Normal University Rejects the Application for Res-idence at School of A Freshman with Visual Disability”.

 

14. “Which Obstacles Must a Person with Disability Overcome to Realize ’University Dream’?”

 

15. “Minzu University of China Establishes a Warm Welcoming Path for Freshmen.”

 

16. Qu Xiangfei, “The Origin and Historical Development of Reasonable Accommodation,” Human Rights 6 (2015).

 

17. Qu Xiangfei, “The Application of Concept of Reasonable Accommodation in Education in China” Human Rights 3 (2017).

 

18. Xin Chunying, Paraphrase of the People with Disabilities Act of PRC (Beijing: Legal Press, 2008), 1.

 

19. On April 21, 2015, the Ministry of Education and the Disabled Persons’ Federation jointly issued the Regu-lations on the Administration of Persons with Disabilities to Participate in the College Entrance Examination (Interim), requesting provision of reasonable accommodation for people with disabilities, which was the first official introduction in China’s legal normative documents. On January 11, 2017, the State Council passed the Regulations on Education of Persons with Disabilities. In addition to actively promoting integrated edu-cation, it also clearly stipulates that “people with disabilities who participate in national education tests can apply for necessary support and reasonable accommodation.” Ever since the implementation of the legal regulations, an obvious result is that the number of candidates applying for reasonable accommodation in the college entrance examination increases year by year. In 2017, a total of 5,626 candidates with disabilities have applied for reasonable accommodation. The examination center of the Ministry of Education has been providing various forms of reasonable accommodation and quality service for candidates with disabilities who take the College English Test, and has been providing Braille test papers since 2017.

 

20. Qu Xiangfei, “The Application of Concept of Reasonable Accommodation in Education in China” Human Rights 3 (2017).

 

21. Jin Xi, “Which is the Most Appropriate Form for a Person with Visual Disability to Participate in National Judicial Examination?”, Wechat Official Account of “Help me, Shengbo”.

 

22. In 2016, a visually-impaired candidate from Jinan, Shandong Province, took the National Judicial Examination in a similar way. The author does not know whether the arrangement provided was what the candidate had applied for, so can could only conclude it was reasonable accommodation since he accepted the arrangement for the exam. The Reply of the Ministry of Justice: Specialist Assistance could be arranged to the Application of a Visually-impaired Candidate for Braille or Electronic Test Paper.

 

23. “The Ministry of Education Claims to Provide Reasonable Accommodation for People with Hearing Disability in the Teachers’ Qualification Examination”.

 

24. “The Notice of Department of Education of Sichuan Province Launching Pilot Work of Assisting hearing-impaired People to Participate in Teachers’ Qualification Accreditation”.

 

25. “Test Time Increased by 30% for Visually-impaired Candidates Participating in the Teachers’ Qualification Examination with Manual Reading Assistance”.

 

26. Ibid.

 

27. A sample survey of people with disabilities in China in 2006 showed that the employment rate of people with disabilities in China was about 31%. From 2007 to 2012, the employment rate of people with disabilities in China reached 45%. Please refer to Lai Desheng, Li Chang’an and Meng Dahu. The Development Report of China’s Labor Market in 2013: Employment of People with Disabilities in the Progress of Building a Moderately Prosperous Society (Beijing: Beijing Normal University Publishing Group, 2013).