PART TWO: CONTENT OF COMPREHENSIVE ANTI-DISCRIMINATION LAW working hours to accommodate days of observance, or to uniform requirements to reflect religious dress, may be required to eliminate discrimination and ensure equal participation in employment.293 It has been argued elsewhere that the justification test applied in discrimination cases, which requires an assessment of the necessity of a measure, and the identification of less restrictive means to achieve a legitimate aim, may imply a general duty to accommodate difference on a broad range of grounds.294 PART TWO – I Article 2 of the Convention on the Rights of Persons with Disabilities defines “reasonable accommodation” as any “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”.295 A similar definition has been used by the European Court of Human Rights296 and in the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa, though in this latter instance, the qualification “not imposing a disproportionate or undue burden” is omitted.297 FAILURE TO ENSURE ACCESSIBILITY The duty to ensure accessibility is provided under article 9 of the Convention on the Rights of Persons with Disabilities, which provides that States: “shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public”. The Committee on the Rights of Persons with Disabilities has distinguished “reasonable accommodation duties” from “accessibility duties”.298 Whereas reasonable accommodation is provided at an individual level,299 “accessibility duties relate to groups and must be implemented gradually but unconditionally”.300 Thus, accessibility is predominantly invoked as a duty and responsibility of the State.301 Accessibility duties are discussed in more detail in section I.C.1 of part two of the present guide, on equality duties. Nevertheless, the Committee on the Rights of Persons with Disabilities has clarified that, in certain circumstances, denial of accessibility can constitute a form of discrimination. The Committee has identified two situations in which a failure to ensure accessibility should be considered as a prohibited act of discrimination: (a) “where the service or facility was established after relevant accessibility standards were introduced”; and (b) “where access could have been granted to the facility or service (when it came into existence) through reasonable accommodation”.302 The Committee on the Rights of Persons with Disabilities has noted that the right to reasonable accommodation is an immediate requirement,303 and applies “in situations where a potential duty bearer should have realized that the person in question had a disability that might require accommodations”.304 The term “reasonable” 293 Ibid., para. 46. The United States Equal Employment Opportunity Commission’s Compliance Manual on Religious Discrimination provides several examples of denial of reasonable accommodation that – absent undue hardship – may give rise to a case of religious discrimination under Title VII of the Civil Rights Act of 1964. This includes, inter alia, refusal to accommodate dress or grooming standards; refusal to allow an unoccupied room to be used as a prayer facility; and refusal to accommodate religious holidays. 294 Bribosia and Rorive, Reasonable Accommodation Beyond Disability in Europe?, p. 22. 295 For further discussion of justifications in the area of non-discrimination law, see section I.A.4 of this part. 296 European Court of Human Rights, Çam v. Turkey, Application No. 51500/08, Judgment, 23 February 2016, para. 65. 297 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa, art. 1. 298 Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 24. 299 Ibid., 24 (b). 300 Ibid., para. 41 (a). 301 Ibid., para. 40. 302 Committee on the Rights of Persons with Disabilities, general comment No. 2 (2014), para. 31. 303 Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 24 (b). 304 Ibid. 41