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Reasonable Accommodation for Age

Published online by Cambridge University Press:  18 February 2020

Refia Kaya
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Abstract

Ensuring equal liberties requires neutral, i.e. impartial, settings where nobody would be deprived of freedom because of their personal characteristics. Religion and disability appear as characteristics which may clash with the existing social and physical environments. Therefore, the necessity of adjusting the existing environment, i.e., reasonable accommodation, is mostly discussed in reference to religion and disability. I aim to discuss reasonable accommodation from a different perspective and ask whether reasonable accommodation should be extended to age issues. I propose that age can lead to differences in conscience or culture like religion. Age can also be a source of dis/ability so it can be compared to accustomed disabilities. Eventually, age may also clash with the existing social and physical environments. I further propose that age is not only similar to but also different from religion and disability when it comes to reasonable accommodation. Therefore, I defend, reasonable accommodation should be extended to age in a special way. The next question then is how age could be accommodated under the European Union (EU) law, especially when we consider that reasonable accommodation law does not have a wide scope in the EU, unlike in Canada.

Type
Research Article
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Canadian Journal of Law & Jurisprudence , Volume 33 , Issue 1 , February 2020 , pp. 115 - 143
Copyright
© The Author(s) 2020

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Footnotes

I am grateful to Axel Gosseries, Louis-Léon Christians, Nicolas Brando, François Boucher, Pierre-Etienne Vandamme, Sandrine Blanc, Andrew Williams, Paul Bou-Habib, Manuel Valente, Nida Kadayifci, Emir Kaya, and the editor of CJLJ and an anonymous reviewer. Ideas in this paper were presented at the Czech Academy of Sciences, Prague, TADS Workshop #2 in November 2017 and University of Tehran International Conference on Sharia and Law in March 2019. Thanks to all participants for their comments. The previous drafts of this paper were presented at University of Louvain Hoover Chair’s Vives Seminars in October 2018 and University of Leuven RIPPLE Research Group’s Justice Seminar in February 2019. I am grateful to Hoover and RIPPLE teams for reading the paper and for their helpful suggestions. Thanks for the support of ‘Taking Age Discrimination Seriously’ project (grant ID: 17-26629S).

References

1. For example, the first age-discrimination act in the United States, the Age Discrimination in Employment Act (ADEA) of 1967 was adopted following the data presented by the Secretary of Labour which revealed the incidence of unemployment of older workers (above the age of 40) because of the widespread age-discrimination. See US, Equal Employment Opportunity Commission, The older American Worker: Age Discrimination in Employment: Report of the Secretary of Labour (Washington DC: US Government Printing Office, 1965). The European Union Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ, L 303/16 was introduced with a similar motivation—to ensure the equal participation of vulnerable age groups, both younger and older workers, in the labour market. (See also EC, European Commission, Age Discrimination and European Law (2005.)) Canada’s legislations prohibiting age discrimination have been grounded in section 15 of the Canadian Charter of Rights and Freedoms, which is the general equality clause. Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. Most jurisdictions in Canada (British Columbia, Manitoba, New Brunswick, Northwest Territories, Nova Scotia, Prince Edward Island, Quebec and Saskatchewan, in particular) have their own specific age discrimination laws. Some of these jurisdictions set upper or lower age limits, namely, Alberta, Ontario, and Saskatchewan. For example, Ontario’s age discrimination legislations were the first of its kind in Canada, and they follow a similar path to that of the U.S. since it has protection only for the older employees (age 40-65) under the sections 5 and 15. See Human Rights Code, RSO 1990, c H19, ss 4, 15.

2. Erdman Palmore, Ageism: Negative and Positive, 2nd ed (Springer, 1999) at 108.

3. Mark Bauerlein, The Dumbest Generation: How the Digital Age Stupefies Young Americans and Jeopardizes Our Future (Tarcher/Penguin Group, 2008); Michael S North & Susan T Fiske, “An Inconvenienced Youth? Ageism and Its Potential Intergenerational Roots” (2012) 138:5 Psychological Bulletin 982 at 992.

4. See, e.g., article 305 of the Labour Code of Bulgaria, the State Gazette, No 26 & 27/1986; section 10 of the Young Workers’ Act of Finland (998/1993); articles 179 and 180 of the FYR of Macedonia Labour Relations Law (167/2015).

5. For philosophical arguments see Brian Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Harvard University Press, 2002); Jocelyn Maclure & Charles Taylor, Secularism and Freedom of Conscience (Harvard University Press, 2011). For legal arguments, see Frank Bowe, Rehabilitating America: Toward Independence for Disabled and Elderly People (HarperCollins, 1980); Malcolm Sargeant, “Older Workers and the Need for Reasonable Accommodation” (2008) 9:3 Int’l J Discrimination L 163; Helen Meenan, “Age Discrimination—of Cinderella and ‘the Golden Bough’” in Helen Meenan, ed, Equality Law in an Enlarged European Union: Understanding the Article 13 Directives (Cambridge University Press, 2007) 278; Gabrielle Mastin & Mark Priestley, “Disability and Age Discrimination” in Malcolm Sargeant, ed, Age Discrimination and Diversity: Multiple Discrimination from an Age Perspective (Cambridge University Press, 2011) 160.

6. This definition comes from the dissenting opinion of Justice Stone in Minersville School Dist v Gobitis, 310 US 586 at 603 (1940). The case concerned several Jehovah’s Witness children who had refused to salute the flag as required as part of a daily school activity and, thus, were expelled from the school. All the justices supported the school’s punishment except Justice Stone who used the term reasonable accommodation for the first time and defined it. He explained that “… where there are competing demands of the interests of government and of liberty under the Constitution, and where the performance of governmental functions is brought into conflict with specific constitutional restrictions, there must, when that is possible, be reasonable accommodation between them so as to preserve the essentials of both and that it is the function of courts to determine whether such accommodation is reasonably possible.”

7. “Undue burden” is also referred to as “undue hardship”. The principle was codified as part of the Equal Employment Opportunity Commission (EEOC)’s Guidelines on Discrimination because of Religion: Observance of the Sabbath and Other Religious Holiday 29 CFR § 1605.1 (1967). It states that “The duty not to discriminate on religious grounds, required by §703(a)(1) of the Civil Rights Act of 1964, includes an obligation on the part of the employer to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer’s business.” The Supreme Court, for the first time, interpreted “undue hardship” in Trans World Airlines v Hardison, 432 US 63 (1977). The Guidelines of EEOC were revised in the Guidelines on Discrimination because of Religion, 29 CFR § 1605.2 (1980). This principle is also used in the Guidelines on Discrimination because of Religion or National Origin, 41 CRF § 60-50.3. These sections focus on accommodations to religious observance and practice.

8. Lori G Beaman, Reasonable Accommodation: Managing Religious Diversity (UBC Press, 2012) at 2. Two Supreme Court decisions in the 1980s mentioned employers’ duty to accommodate the religious needs of their employers as long as it does not cause undue hardship. Ontario Human Rights Commission v Simpsons-Sears Ltd, [1985] 2 SCR 536 [Sears]; Bhinder v Canadian National Railway Co, [1985] 2 SCR 561 [Bhinder].

9. Minersville School Dist v Gobitis, 310 US 586, at 603 (1940).

10. Multani v Commission Scolaire Marguerite-Bourgeoys, 2006 SCC 6 [Multani].

11. Nijjar v Canada 3000 Airlines Ltd, [1999] 3 CHRD 36 at para 127.

12. Jamal Mahmud, “Freedom of Religion in the Supreme Court: Some Lessons from Multani” (2006) 21 NJCL 291 at; Allison N Crawford, “Learning Lessons from Multani: Considering Canada’s Response to Religious Garb Issues in Public Schools” (2007) 36:1 Ga J Int’l & Comp L 159.

13. Alan Schwarz, “No Imposition of Religion: The Establishment Clause Value” (1968) 77:4 Yale LJ 692.

14. Discrimination law requires the Aristotelian conception of equality, which is treating like cases alike, and unlike cases differently. Reasonable accommodation is a way of treating unlike cases differently.

15. This definition is akin to the following definition adopted by the ENAR (European Network Against Racism): Reasonable accommodation is “an adjustment made in a system to accommodate or make fair the same system for an individual, based on a proven need.” European Network Against Racism, Reasonable Accommodation of Cultural Diversity in The Workplace (Brussels: ENAR, 2011) at 7.

16. Koïchiro Matsuura, Investing in cultural diversity and intercultural dialogue: UNESCO world report (UNESCO Publishing Paris, 2009).

17. According to Ian Goldin and his co-researchers, although diversity has been shaping long-term economic growth, the short-term impact of it on economies is uncertain, since it is dependent on various variables, e.g., how the diverse population is treated and opportunities for social mobility. Ian Goldin, Geoffrey Cameron & Meera Balarajan, Exceptional People: How Migration Shaped Our World and Will Define Our Future (Princeton University Press, 2011).

18. The Royal Tobacco Factory of Seville has a chapel for women workers. Elizabeth Nash, Seville, Córdoba, and Granada: A cultural history (Oxford University Press, 2005) at 116. This chapel was built to make sure that women worked more efficiently.

19. In the book edited by Philippe Van Parijs, François Grin argued that even if cultural diversity is not as costly as it is thought to be, it still has a cost, and its benefit to the economy might decrease at an increasing rate (just like the environmental quality). Yet, we should accommodate diversity since being different is something legitimate and cannot be privatized. His approach showed that a costs and benefits analysis alone cannot help to justify diversity. See François Grin, “On the Costs of Diversity” in Philippe Van Parijs, ed, Cultural Diversity Versus Economic Solidarity: Is There a Tension? How Must It Be Resolved (De Boeck Supérieur, 2003) 189.

20. Miikka Pyykkönen, “Unesco and Cultural Diversity: Democratisation, Commodification or Governmentalisation of Culture?” (2012) 18:5 Int’l J Cult Pol’y 549.

21. Here, I take an idealist rather than a practical stance to explain the main motivations behind reasonable accommodation.

22. Perez Zagorin, How the Idea of Religious Toleration Came to the West (Princeton University Press, 2003); John Coffey, Persecution and Toleration in Protestant England 1558-1689 (Routledge, 2014).

23. John Locke, A Letter Concerning Toleration and Other Writings, ed by Mark Goldie (Liberty Fund, 2010) at 4-12.

24. In some cases, it is also represented through a stricter form of secularism called laicism: For example, Article 1 of La Constitution du 4 octobre 1958, JO, 3 June 1958; Art 2 Constitution of Turkey 1982 (Turkey). Charles Taylor, “Foreword: What is secularism?” in Brahm Levey & Tariq Modood, eds, Secularism, Religion and Multicultural Citizenship (Cambridge University Press, 2009); Emir Kaya, Secularism and State Religion in Modern Turkey: Law, Policy-making and the Diyanet (Bloomsbury, 2017) at 6.

25. Jeremy Waldron, Legislation and Moral Neutrality (Routledge, 1989).

26. Ronald Dworkin, A Matter of Principle (Clarendon Press, 1985) at 191; John Stuart Mill, “On Liberty” in John M Robson, ed, A Selection of His Works (University of Toronto Press, 1966); Barry, supra note 5. Charles Taylor, Multiculturalism and “the Politics of Recognition” ed by Amy Gutmann (Princeton University Press, 1992); Maclure & Taylor, supra note 5; Roberto Merrill & Daniel Weinstock, Political Neutrality: A Re-Evaluation (Springer, 2014).

27. John Rawls, “The Priority of Right and Ideas of the Good” (1988) 17:4 Philosophy & Public Affair 251 at 260-64. There is also neutrality of justification. However, it is usually packaged with neutrality of intentions by the advocates of neutrality. See, for example, Alan Patten, “Liberal Neutrality: A Reinterpretation and Defense” (2012) 20:3 J Political Philosophy 249 at 255.

28. Rawls abandons this view as impractical by claiming that political principles inevitably encourage some ways of life and discourage others and in some cases exclude certain lifestyles altogether. Ibid at 264.

29. Ronald Dworkin was among the main advocates of this approach to neutrality. He believed that “[g]overnment must be neutral on what might be called the question of the good life,” and explains that “political decisions must be, so far as is possible, independent of any particular conception of the good life, or of what gives value to life.” Dworkin, supra note 26 at 191. For other notable advocates of neutrality of intentions see Bruce Ackerman, Social Justice in the Liberal State (Yale University Press, 1980) at 11; Jeremy Waldron, “Autonomy and Perfectionism in Raz’s Morality of Freedom” (1988) 62 S Cal L Rev 1097; Will Kymlicka, Liberalism, Community, and Culture (Oxford University Press, 1991) at 76-85. To my mind, neutrality of intentions can be also considered impractical. Every legal stance is based on a conception of the good, and therefore undermines other conceptions of the good in its methodology, if not in terms of its social visibility. For example, forbidding sharp objects in schools involves a negative judgement about sharp objects, which undermines the Sikh people’s belief that considers this specific sharp object as holy.

30. Joseph Raz, The Morality of Freedom (Clarendon Press, 1986) at 110-30.

31. Ibid at 140.

32. A similar point is also emphasized in a recent U.S. case which clarified that the religious freedom clause “does not demand mere neutrality.” Equal Employment Opportunity Commission v Abercrombie & Fitch Stores Inc, 575 US 6 (2015). A more realistic view is the “generalist view.” Legal systems may claim to be general, which confesses that they do not readily answer to every specific scenario. See Frederick Schauer, “The Generality of Law” (2004) 107:1 W Va L Rev 217.

33. Reasonable accommodation is mostly referred to as an exception to a general but a controversial and legitimate rule, which indirectly discriminates against certain individuals. See Emmanuelle Bribosia et al, “Reasonable accommodation for religious minorities: A promising concept for European antidiscrimination law?” (2010) 17:2 MJECL 137 at 139.

34. Carens, Joseph H, Culture, Citizenship, and Community: A Contextual Exploration of Justice as Evenhandedness (Oxford University Press, 2000) at 8-14.CrossRefGoogle Scholar

35. For a related case from Canada see Moore v British Columbia (Education), 2012 SCC 61. For a case from the European Court of Human Rights see Dh v Czech Republic [GC], no 57325/00, [2008] 47 EHRR 3.

36. Barbara M Altman, “Disability Definitions, Models, Classification Schemes, and Applications” in Gary L Albrecht, Katherine D Seelman & Michael Bury, eds, Handbook of Disability Studies (SAGE, 2001) 97; Jonas-Sébastien Beaudry, “Beyond (Models of) Disability?” (2016) 41:2 J Med & Philosophy 210.

37. Mike Oliver, “If I Had a Hammer: The Social Model in Action” in John Swain, ed, Disabling Barriers—Enabling Environments (SAGE, 2004). Phillip Cole, “The Body Politic: Theorising Disability and Impairment” (2007) 24:2 J Applied Philosophy 169.

38. Karen P DePauw, “Social-cultural context of disability: Implications for scientific inquiry and professional preparation” (2000) 52:4 Quest 358. Elizabeth Barnes, “Valuing disability, causing disability” (2014) 125:1 Ethics 88. Defenders of the mere difference view argue that disability is similar to gender or race. They avoid referring to disability as a harm. This approach is criticized by Greg Bognar. See Greg Bognar, “Is Disability Mere Difference?” (2016) 45:1 J Medical Ethics 46.

39. Here, one can argue with luck egalitarian intuitions that an important difference between disability and religion is that the former is unchosen and the latter is chosen. I believe that a luck egalitarian approach equally justifies or does not justify religious accommodation and disability accommodation. This is because religion can be considered an unchosen cultural value as Will Kymlicka famously argues. See Kymlicka, supra note 29. On the other hand, disability can be considered as chosen in the case of people who do extreme sports, take a risk, and are injured. Reasonable accommodation should not be justified with luck egalitarian intuitions which require very hard, if not impossible, determinations about what is chosen what is not. Such an approach leads to unjust legal consequences before the courts. See Jonathan Quong, “Cultural Exemptions, Expensive Tastes, and Equal Opportunities” (2003) 23:1 J Applied Philosophy 53.

40. Paddy Ladd, Understanding Deaf Culture: In Search of Deafhood (Multilingual Matters, 2003).

41. Convention on the Rights of Persons with Disabilities, 3 May 2008, 2515 UNTS at 3 Preamble (e) (entered into force December 13 2006).

42. Ibid at art 1.

43. Arlene S Kanter, “The promise and challenge of the United Nations Convention on the Rights of Persons with Disabilities” (2006) 34 Syracuse J Int’l L & Com 287; Paul Harpur, “Embracing the New Disability Rights Paradigm: The Importance of the Convention on the Rights of Persons with Disabilities” (2012) 27:1 Disability & Society 1.

44. The full neutrality of effects is a difficult ideal when considering the complexity and cost of accommodating every kind of disability, yet it has been argued that social policies should do better. See Jonathan Wolff, “Cognitive Disability in a Society of Equals” (2009) 40:3-4 Metaphilosophy 402.

45. Nathan Kogan, “Chronological Age” in Neil J Salkind, ed, Encyclopaedia of Human Development (SAGE, 2005) 267.

46. Jacques Demongeot, “Biological Boundaries and Biological Age” (2009) 57:4 Acta Biotheoretica 397.

47. Douglas K Symons, “Psychological Age” in Sam Goldstein & Jack A Naglieri, eds, Encyclopaedia of Child Behavior and Development (Springer US, 2011).

48. Priority seats for the elderly in some Asian countries, e.g., Korea, exist for the traditional reasons of respecting the elderly. See Seo Ji-eun, “Hey, Whippersnapper! Don’t Take That Seat”, Korea Joongang Daily (27 July 2010), online: http://koreajoongangdaily.joins.com [perma.cc/SF8D-7GJL].

49. Brent Roberts, Kate Walton & Wolfgang Viechtbauer, “Patterns of Mean-Level Change in Personality Traits across the Life Course: A Meta-Analysis of Longitudinal Studies” (2006) 132:1 Psychological Bulletin 1; Ilse Cornelis et al, “Age Differences in Conservatism: Evidence on the Mediating Effects of Personality and Cognitive Style” (2009) 77:1 J Personality 51.

50. Andy Furlong & Fred Cartmel, Young People and Social Change (Open University Press, 2006) at 80-85; Mike Brake, Comparative Youth Culture: The Sociology of Youth Cultures and Youth Subcultures in America, Britain and Canada (Routledge, 2013). Some authors argue that children simply have a different culture not a less mature one. See Anca Gheaus, “The ‘Intrinsic Goods of Childhood’ and the Just Society” in Alexander Bagattini & Colin Macleod, eds, The Nature of Children’s Well-Being (Springer, 2015).

51. Curiosity is very high during childhood and usually diminishes as one grows older. Brent Roberts, supra note 49.

52. John A Vincent, Guy Patterson & Karen Wale, Politics and Old Age: Older Citizens and Political Processes in Britain (Routledge, 2017) at 19-20; Cornelis et al, “Age Differences in Conservatism: Evidence on the Mediating Effects of Personality and Cognitive Style”, supra note 49.

53. James Tilley, “Hard Evidence: Do We Become More Conservative with Age?”, The Conversation (October 4, 2015), online http://theconversation.com [perma.cc/74FX-K6UQ].

54. Nora-Beata Erichsen & Arndt Büssing, “Spiritual Needs of Elderly Living in Residential/Nursing Homes” (2013) 2013 Evidence-Based Complementary Alt Med 1; Carlos Ignacio Man-Ging et al, “Reporting Spiritual Needs of Older Adults Living in Bavarian Residential and Nursing Homes” (2015) 18:10 Mental Health, Religion & Culture 809.

55. Nahrstedt v Lakeside Village Condominium Assn, 33 Cal Rptr 2d 63 (1994); Niagara North Condominium Corp No 46 v Chassie, [1999] 173 DLR (4th) 524.

56. Tara Parker-Pope, “Getting Old but Still Feeling Young”, New York Times (December 3, 2008), online: https://well.blogs.nytimes.com [perma.cc/P9UX-Y8KW].

57. Harrison, Robert Pogue, Juvenescence: A Cultural History of Our Age (University of Chicago Press, 2014).CrossRefGoogle Scholar

58. Perry, Michael J, Morality, Politics, and Law (Oxford University Press, 1990) at 101.Google Scholar

59. Maclure & Taylor, supra note 5; Paul Bou-Habib, “A Theory of Religious Accommodation” (2006) 23:1 J Applied Philosophy 109.

60. Brian Leiter, Why Tolerate Religion? (Princeton University Press, 2014). But see François Boucher & Cécile Laborde, “Why Tolerate Conscience?” (2016) 10:3 Crim L Phil 493.

61. In the U.S., this idea gained recognition legally in United States v Seeger and was reaffirmed in Welsh v United States, which concerned a refusal to submit to induction into the armed forces. In Welsh, it was decided that individuals can ground their opposition to war not only on religious beliefs but on any “sincere and meaningful” conviction that occupies an important place in their life as does a religious belief. In these cases, Seeger and Welsh were basing their convictions on a secular ideology, namely the idea of pacifism. See United States v Seeger, 380 US 163 (1965); Welsh v United States, 398 US 333 (1970).

62. Linda P Fried et al, “Frailty in Older Adults Evidence for a Phenotype” (2001) 56:3 J Gerontology Series A M146; Jeremy S Tilstra et al, “Nf-Kb in Aging and Disease” (2011) 2:6 Aging and Disease 449; Anna Biernacka & Nikolaos G Frangogiannis, “Aging and Cardiac Fibrosis” (2011) 2:2 Aging and Disease 158.

63. Karl HE Kroemer, ‘Extra-Ordinary’ Ergonomics: How to Accommodate Small and Big Persons, the Disabled and Elderly, Expectant Mothers, and Children (CRC Press, 2005) at 1-10.

64. David Wasserman et al, “Disability: Definitions, Models, Experience” in Edward Zalta, ed, The Stanford Encyclopedia of Philosophy (The Metaphysics Research Lab, 2011).

65. Mastin, supra note 5.

66. Naftali Raz, “Aging of the Brain and Its Impact on Cognitive Performance: Integration of Structural and Functional Findings” in FIM. Craik & TA Salthouse, eds, The Handbook of Aging and Cognition, 2nd ed (Mahwah, NJ: Lawrence Erlbaum, 2000); Robert B Hudson, “Bringing Science and Seniors Together” (2007) 17:1 Pub Pol’y Aging R i.

67. Michelle M Porter, Anthony A Vandervoort & Jan Lexell, “Aging of Human Muscle: Structure, Function and Adaptability” (1995) 5:3 Scandinavian J M & Sci Sports 129.

68. Michael Ashley Stein et al, “Accommodating Every Body” (2014) 81 U Chicago L Rev 689.

69. Ibid.

70. Emil Ratelband, a Dutch comedian, who proved to be biologically and psychologically 20 years younger applied to the Court to change his legal age but did not succeed. See Court of Gelderland, Arnhem, 3 December 2018 (2018), C/05/335902 (Netherlands).

71. Melissa J Bjelland et al, “Age and Disability Employment Discrimination: Occupational Rehabilitation Implications” (2010) 20:4 J Occupational Rehabilitation 456 at 467.

72. The characterization of pregnancy as a disability has been supported by some academics, see Colette G Matzzie, “Substantive Equality and Antidiscrimination: Accommodating Pregnancy Under the Americans with Disabilities Act” (1993) 82 Geo LJ 193. However, most feminist argue against labelling pregnancy as a disability. They consider it problematic to associate a normal biological function of the women as an impairment. See Jeannette Cox, “Pregnancy as Disability and the Amended Americans with Disabilities Act” (2012) 53 BCL Rev 443.

73. It is important not to see old age as equal to disability or dependence. Having an age accommodation law different from a disability law can help resisting apocalyptic demography, which means seeing the negative aspects of ageing only.

74. Douglas Baynton argued that gender and race were considered proxies to disability on the basis of excluding and discriminating against women and minorities. Yet women and minorities argued against such a label and rejected the perceived connection between disability and their identity. See Douglas C Baynton, “Disability and the Justification of Inequality in American History” in Lennard Davis, ed, The Disability Studies Reader, 5th ed (Taylor & Francis, 2016) at 17.

75. Ibid.

76. UNICEF, “Promoting the Rights of Children with Disabilities” (2007) 13 Innocenti Digest. See a related case Blokhin v Russia [GC], No 47152/06, [2016] HUDOC.

77. Grace Davie & John Vincent, “Religion and Old Age” (1998) 18:1 Ageing & Society 101.

78. Malcolm Sargeant, “Disability and Age: Multiple Potential for Discrimination” (2005) 33 Int’l J Soc L 17.

79. Dennis McKerlie, “Justice Between the Young and the Old” (2001) 30:2 Philosophy & Public Affairs 152; Axel Gosseries, “What Makes Age Discrimination Special: A Philosophical Look at the ECJ Case Law” (2014) 43 Netherlands J Legal Philosophy 59.

80. Ibid.

81. Sears, supra note 8; Bhinder, supra note 8; Quebec, Commission de Consultation sur les Pratiques d’Accommodement Reliées aux Différences Culturelles, Bringing the Future: a Time for Reconciliation, Gérard Bouchard & Charles Taylor (Quebec, 2008). It is useful to note that “reasonable accommodation” was initially used in U.S. law as a part of 1966-1967 Guidelines on the development of the religious accommodation requirement of Title VII of the Civil Rights Act of 1964. This law obliges employers to make reasonable accommodation of the religious needs of employees where such accommodation is possible without undue hardship. See Guidelines on Religion, supra note 7. Reasonable accommodation rights of the disabled were recognized almost after 10 years with 1973 U.S. Rehabilitation Act. See Rehabilitation Act, 29 USC § 701 (1973).

82. See Sears, supra note 8; Grant v Canada (Attorney General), [1995] 125 DLR (4th) 556; Multani, supra note 10. Also see Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

83. Charter, supra note 82 s 15(2).

84. See EC, Commission Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, [2000] OJ, L 303/16 at art 5 [Directive on Equal Treatment].

85. European Union, Reasonable Accommodation Beyond Disability in Europe by Emmanuelle Bribosia, Isabelle Rorive & Lisa Waddington (Luxembourg, 2013) at 5.

86. EC, Commission Proposal for Directive, 2008/0140 (CNS) of 2 July 2008 on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation at para 9.

87. Ibid at para 12.

88. Directive on Equal Treatment, supra note 84.

89. Ibid.

90. Mangold v Helm, C-144/04, [2005] ECR I—10013.

91. See, e.g., Dagmar Schiek, “The ECJ Decision in Mangold: A Further Twist on Effects of Directives and Constitutional Relevance of Community Equality Legislation” (2006) 35:3 Indus LJ 329; Marlene Schmidt, “The Principle of Non-Discrimination in Respect of Age: Dimensions of the Ecj’s Mangold Judgment” (2006) 7:5 German LJ 505. Thanks to Christa Tobler for this point.

92. Nahrstedt v Lakeside Village Condominium Assn, 13 Cal Rptr 2d 510 (1992) at 393.

93. Ibid. Arabian J, dissenting at 390.

94. Niagara North Condominium Corp No 46 v Chassie, [1999] 173 DLR (4th) 524 (OntSC).

95. Ibid at para 115.

96. Maurice v Canada (Attorney General), 2002 FCT 69 at para 3.

97. Ibid at para 12.

98. Thlimmenos v Greece, No 34369/97 [2000] HUDOC.

99. Ibid at para 44.

100. Vivien Prais v Council, 130/75, [1976] ECR 1589.

101. Ibid at para 2.

102. Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV [GC], C-157/15 [2017] Digital Reports at paras 44-45.

103. Katayoun Alidadi, “Reasonable Accommodations for Religion and Belief: Adding Value to Article 9 ECHR and the European Union’s Anti-Discrimination Approach to Employment?” (2012) 37:6 Eur L Rev 693 at 707; Bribosia, supra note 85 at 39.

104. Alidadi, supra note 103 at 714.

105. Andreas Stein, “Reasonable Accommodation for Religion and Belief: Can It Be Accommodated in EU Law without an Express Duty?” in Marie-Claire Foblets, Katayoun Alidadi & Zeynep Yanasmayan, eds, Belief, Law and Politics: What Future for a Secular Europe? (Routledge, 2016) 171.

106. Christa Tobler, Indirect Discrimination: A Case Study into the Development of the Legal Concept of Indirect Discrimination under EC Law (Intersentia nv, 2005) at 39.

107. Fag og Arbejde (FOA) v Kommunernes Landsforening (KL), C-354/13, [2014] Digital Reports.

108. Sonia Chacón Navas v Eurest Colectividades SA, C-13/05, [2006] ECR I—6488 at para 25.

109. “K” Care, Inc v Town of Lac Du Flambeau, 510 NW 2d 697 (Wis App Ct 1993).

110. When the accommodation demand is based on multiple grounds, such as age and disability, age would be seen as redundant by the Court since an accommodation duty on the grounds of age is non-existent.

111. EC, Charter of Fundamental Rights of the European Union Official Journal of the European Communities, [2000] OJ, L 364/01 at art 52.

112. Labour Code of Bulgaria, the State Gazette, No 26 & 27/1986, supra note 4.

113. The Young Workers’ Act of Finland (998/1993), supra note 4.

114. FYR of Macedonia Labour Relations Law (167/2015), supra note 4. See also Declan O’Dempsey, Anna Beale & Mark Robert Freedland, Age and Employment (Publications Office of the European Union, 2011) at 39.