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    From April 2024! Obligations of Businesses to Persons with Disabilities

    1 Introduction

    Have you ever heard of the Law for the Elimination of Discrimination against Persons with Disabilities? The official name of this law is the "Act on Promotion of Elimination of Discrimination on the Basis of Disability," which was enacted in June 2013 and came into effect in April 2016. The purpose of this law is to promote the elimination of discrimination on the basis of disability in order to realize a society in which all citizens live together in mutual respect for each other's personality and individuality, without being divided by disability. The law has been revised and new obligations for business operators have been established as of April 1, 2024, and we will introduce these revisions here.

    2 Disability Discrimination Law

    (1) Background of the Enactment of the Law

    The prohibition of discrimination on the basis of disability is stipulated in Article 4, paragraph 1 of the Basic Law for Persons with Disabilities as follows: "No person shall discriminate against a person with disabilities or commit any other act that infringes on his/her rights and interests on the basis of disability." The Basic Act for Persons with Disabilities stipulates that "No one shall discriminate against persons with disabilities or otherwise infringe on their rights and interests on the basis of disability. However, the Basic Law for Persons with Disabilities only prohibits discrimination in the abstract, without specific provisions.
    Therefore, the Law for the Elimination of Discrimination against Persons with Disabilities was enacted to concretely realize the prohibition of discrimination. Other related laws, which I will not mention at this time, have also been enacted, such as the Law for Comprehensive Support for Persons with Disabilities, the Law for Employment Promotion of Persons with Disabilities, and various others.

    (2) Outline of the Law for the Elimination of Discrimination against Persons with Disabilities

    The Law for the Elimination of Discrimination against Persons with Disabilities prohibits "unfair and discriminatory treatment" against persons with disabilities and requires administrative agencies and business operators to "provide reasonable accommodation" (Articles 7 and 8).
    In this law, persons with disabilities are defined as persons with physical disabilities, intellectual disabilities, mental disabilities, or other physical or mental functional impairments who are in a state of continuous substantial limitation in their daily life or social life due to disabilities or social barriers (Article 2, Item 1 of the same law). In other words, it is not limited to holders of the disability certificate.

    (3) Prohibition of "Unjustifiable Discriminatory Treatment

    Prohibition of "unfair and discriminatory treatment" means that administrative agencies and businesses are prohibited from discriminating against persons with disabilities without justifiable reasons. This includes refusing to accept or lowering the quality of treatment of persons with disabilities because of their disabilities.
    A justifiable reason is defined as a case in which the act is (1) objectively justifiable and (2) unavoidable in light of that purpose. Whether or not an action falls under the category of justifiable reason must be judged comprehensively and objectively in each individual case from the viewpoint of the rights and interests of persons with disabilities, business operators, and third parties, and the maintenance of the purpose, contents, and functions of the administrative office and business of the administrative agency, according to the specific scene and circumstances.
    This judgment must be made on an individual basis. For example, even persons with the same disability have their own individual circumstances, so it is not possible to establish a uniform justification for a person with a certain disability. In order to determine a justifiable reason, it is important to confirm the status of the disability, etc. with the person with the disability.
    If a justifiable reason is determined to exist, it is desirable to explain the reason to the person with disabilities and try to gain his/her understanding.

    (4) "Provision of Reasonable Accommodation"

    The term "provision of reasonable accommodation" means that when a person with a disability expresses a need for the removal of a social barrier, the company will accommodate the request as long as it is not excessively burdensome. For example, when a person with a hearing impairment requests written communication, the company will accommodate the request.
    Reasonable accommodation must satisfy the following three conditions in light of the purpose, content, and function of the office work or business: (1) it must be limited to what is incidental to the original work to the extent that it is necessary, (2) it must be provided to ensure that the individual is provided with equal opportunities compared to persons who are not disabled, and (3) it must not result in essential changes in the purpose, content, or function of the office work or business. The purpose, content, and function of the office/business must be satisfied. In other words, if a restaurant is asked to provide meal assistance, it is not required to comply with the request because the restaurant does not make meal assistance a part of its business.
    In addition, whether or not it is an excessive burden must be judged comprehensively and objectively according to the specific situation and circumstances, taking into consideration (1) the degree of impact on the office/business, (2) the degree of feasibility, (3) the degree of cost and burden, (4) the scale of the office/business, and (5) the fiscal and financial situation, for each individual case. As with the determination of justifiable reasons in "unfair and discriminatory treatment," decisions should be made on a case-by-case basis, and uniform treatment should not be applied. The lack of precedent, vague risk, etc. are not reasons for not providing "reasonable accommodation.

    (5) Details of the Amendment

    Until now, "provision of reasonable accommodation" had been an obligation for administrative agencies and a duty of effort for business operators.

    3 Responses required of businesses in accordance with the revision

    (1) Preliminary measures

    It is useful for businesses to know in advance the contents of the law, characteristics of disabilities, and specific examples of reasonable accommodation so that reasonable accommodation will be appropriately provided to each person with disabilities. For specific examples of disability characteristics and reasonable accommodation, the Cabinet Office's "Portal Site for Promotion of Understanding to Eliminate Discrimination against Persons with Disabilities" (https://shougaisha-sabetukaishou.go.jp/) is a useful reference. It is also useful to refer to the respective response guidelines (https://www8.cao.go.jp/shougai/suishin/sabekai/taioshishin.html) on the Cabinet Office's website, as national administrative agencies with business jurisdiction have established response guidelines for business operators The guidelines can be found on the Cabinet Office's website at .
    After referring to these guidelines, it is even better to check internal manuals, provide training to employees, and review facilities and equipment. Although these preliminary measures are only an obligation to make efforts, it is effective to improve the environment rather than considering and providing reasonable accommodation on a case-by-case basis when a large number of disabled persons are expected or when the relationship with a disabled person is long-term.

    (2) Actual Response

    What is required of business operators under this revision is to respond appropriately when reasonable accommodation is requested, mainly in individual situations.
    When a person with a disability requests some kind of response, it is important that the person with a disability and the business operator engage in dialogue and come up with measures that are feasible for both parties. For example, if a person with a mental disability requests to wait his/her turn in a separate room because it is difficult to wait in front of a large number of people, but it is difficult to secure a separate room, the company should not take action because it cannot secure a separate room, but rather create a space by simply separating the waiting room with a partition, Instead, it is necessary to create a space by simply dividing the waiting room with partitions so that people can wait their turn in the waiting room.
    As already mentioned, the mandate to "provide reasonable accommodation" does not mandate excessive burdens, so there is no need to tolerate actions that would be an excessive burden to the operator or that would normally be subject to punishment.

    4 Penal Regulations

    If a business operator is engaged in "unfair discriminatory treatment" or is not "providing reasonable accommodation," and it is difficult to expect voluntary improvement, the government administrative agency may request a report or give advice, guidance, or recommendations (Article 12 of the Law for Elimination of Discrimination against Persons with Disabilities). And if a report is not made or a false report is made at that time, a non-penal fine of up to 200,000 yen will be imposed (Article 26 of the same law).

    5 Conclusion

    As we have discussed, the responses required by the Law for the Elimination of Discrimination against Persons with Disabilities are not absolute, as they constantly change depending on the circumstances of persons with disabilities and the state of technological development at that time. When actually considering how to respond, it is important to look for a conclusion that both parties can understand and agree on, rather than focusing on one side or the other. We need to look beyond precedents and prejudices and have a viewpoint of what we can do to enable the disabled person in front of us to spend his/her life in the same way as a person without disabilities.