장애인 근로자 등에 대한 정당한 편의제공 의무의 법적 근거와 성격

Abstract

The most direct legal basis for the obligation to provide just accommodation to employees with disabilities is the Anti-Discrimination against and Remedies for Persons with Disabilities Act(ADRPDA). ADRPDA divides discrimination into direct discrimination, indirect discrimination, and refusal to provide just accommodation. The UN Convention on the Rights of Persons with Disabilities(CRPD) has separate provisions for non-discrimination and the obligation to provide reasonable accommodation in relation to employment. CRPD is an international treaty that has been ratified and agreed to by the National Assembly and has the same effect as domestic laws, so it can serve as a legal basis for the obligation to provide accommodation. In particular, CRPD are particularly useful in areas that set a higher or more specific level of coverage than ADRPDA, such as not acknowledging reasons for defense, such as excessive burden in the area of accessibility standards, or specifying conditions for a safe and sanitary working environment. The obligation to provide accommodation to employees with disabilities can also be derived based on general anti-discrimination provisions such as the Employment Act for the Disabled, the Welfare Act for the Disabled, the Labor Standards Act, and the Equal Rights of the Constitution. This discussion has great benefits in that the provisions on the obligation to provide accommodation under ADRPDA is incomplete in several respects. The obligation to provide accommodation can be derived normatively from the concept of non-discrimination, and has essentially a legal character as a non-discrimination. The duty of accommodation originated from the United States. Under the Civil Rights Act of 1964, in the field of employment discrimination based on religion, the principle that refusal to provide accommodation constitutes discrimination was applied for the first time. After that, refusal to provide accommodation was recognized as discrimination in relation to the prohibition of discrimination in employment based on disability under the Rehabilitation Act of 1972. At the same time, the employer's obligation to provide accommodation grants the other party the right to claim the fulfillment of the obligation to provide accommodation. The duty to provide accommodation and the right to request accommodation can also be derived from contract law through the concept of the duty of consideration based on the labor contract. The above review on the legal basis and nature of the obligation to provide accommodation gives many implications to the discussion of various issues related to the obligation to provide accommodation in ADRPDA.