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《复健法》和《美国残疾人法》有限度地禁止基于残疾的职业歧视。美国法律所承认的残疾既包括狭义上的生理、心理缺陷,亦涵盖了部分疾病及想象中的残疾。但两法的保护对象限于能够独立完成或在雇主提供合理迁就之后能够独立完成工作主要职责的残疾求职者或雇员。雇主除承担不得歧视残疾求职者或雇员的消极义务之外,亦同时负有视残疾求职者或员工实际需要,在合理范围内向其提供迁就措施的积极义务。美国在残疾人职业权利保障领域的实践也为我国重构“残疾人”的法律定义、发挥残联在维护残疾人平等职业权利方面的潜力、明确用人单位合理迁就义务等方面提供了可资借鉴的实例。
The Rehabilitation Act and the Americans with Disabilities Act have a limited ban on occupational discrimination based on disability. Disabilities recognized by US law include both physical and psychological defects in a narrow sense and cover some diseases and their imaginary disabilities. However, the objects of protection under the two laws are limited to job-seekers or employees with disabilities who are able to do their job either independently or after the employer provides them with a reasonable accommodation. In addition to the negative obligations that employers should not discriminate against job-seekers or employees with disabilities, employers also have a positive obligation to provide job-seekers or employees with disabilities, within reasonable limits, to actual needs of job-seekers or employees with disabilities. The practice of the United States in the field of the protection of the occupational rights of persons with disabilities also provides the legal definition for “rehabilitating the disabled” in our country, giving full play to the potential of the Federation for Disabled Persons in safeguarding equal occupational rights for the disabled, and clarifying the reasonable accommodation of employers Examples of capital reference.