영국과 미국의 장애인차별금지법제와 장애인사회보장법제의 관계― 고용상의 합리적 편의제공의무와 국가의 장애인고용지원을 중심으로 ―

In Korea, the duty of just accommodation has been in place under the Disability Discrimination Act since the introduction of the Act in 2008. However there has been little attention to the meaning and the efficiency of the duty of just accommodation. On the one hand, it is natural that an employer should have a duty to accommodate people with disabilities. On the other hand, it seems unfair for an employer and people with disabilities that it depends on the financial situation of the employer whether the duty arises in relation to people with disabilities. Against this backdrop, this research is aimed at finding out examples of developed countries in which the duty of reasonable accommodation is efficiently enforced in relation to welfare law for people with disabilities. To this end, the research takes, as the examples, the US and the UK which are among the most developed with regard to disability discrimination law. The research puts its focus on the relationship between the duty of reasonable accommodation in disability discrimination law and supporting scheme for people with disabilities seeking, or in, a job in social welfare law. In the US, the Disabled Tax Credit (DTC) has been in place since 1990, when the Americans with Disabilities Act of 1990 was enacted and enforced. The DTC applies to small business annual earnings of which does not exceed $ 1,000,000 or which otherwise employs 30, or less than, employees. The amount of the DTC is confined to the upper limit of $ 5,000. It is found out that the DTC is closely related to the duty of reasonable accommodation in the ADA of 1990. Firstly, the regulation on the DTC itself provides that ‘eligible access expenditures’ in the DTC is paid or incurred ‘to comply with applicable requirements under the ADAD of 1990’. Secondly, the meaning of disability under the DTC is the same as that under the ADA of 1990. Thirdly and mostly importantly, the ADA requires that, for instance, an employer has to use, if available, support from the DTC before he or she claims that making accommodation for a person with disability gives rise to undue hardship. The ADA does so by making the availability of tax credit one of the factors to determine whether the accommodation would cause undue hardship for an employer. Therefore net cost of the accommodation only, in which the financial support that an employer obtains, or would obtain, for the DTC scheme is not included, is taken account of. In the UK, the Access to Work (AtW) programme has been operated since the mid 1990s, when the duty to make reasonable adjustments was firstly imposed on an employer. Unlike the DTC of the US, the AtW gives full grant for a variety of adjustment costs to people with disabilities who seeks for a self-employed job or employment, or who are in employment less than 6 weeks. The AtW grant is given by the application of a person with a disability, which is another difference from the DTC of the US. It is also found out that the AtW has a close relationship with the duty to make reasonable adjustments. Firstly the meaning of disability under the AtW is identical to that under the EA 2010. Secondly, the Code of Practice on the EA 2010 provides that the availability to an employer of financial or other assistance to help make an adjustment (such as advice through Access to Work)’ might be taken into account when deciding what is a reasonable step for the employer to have to take. This may mean that an employer is in breach of the duty to make reasonable adjustments when he or she refuses to make adjustments for financial reasons without a consideration of the AtW grant. Overall, the close relationship between the duty of reasonable accommodation and supporting schemes for people with disabilities has been established in both the US and the UK. This leads us to look at whether any sign of such relationship can be found out in Korea. Unfortunately, there has been no recognition of supporting scheme for people with disabilities seeking for a job in Disability Discrimination Act of Korea, although the scheme exists under the relevant law. Findings of this research suggests that a close relationship should be established by reforming disability discrimination law and relevant law on the supporting scheme in order to make people with disabilities integrated into Korean society.