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 WHAT IS THE DUTY TO ACCOMMODATE?

The duty to accommodate refers to the obligation of an employer, service provider, or union to take steps to eliminate disadvantage to employees, prospective employees or clients resulting from a rule, practice, or physical barrier that has or may have an adverse impact on individuals or groups protected under the Canadian Human Rights Act, or identified as a designated group under the Employment Equity Act.

Sometimes, workplaces have rules, policies, practices and behaviours that apply equally to everyone, but can create barriers based on an irrelevant group characteristic. Canadian human rights legislation recognizes that true equality means respect for people’s different needs. In employment, this means valuing and accommodating differences so that all employees can work to the best of their ability.

The duty to accommodate requires employers to identify and eliminate rules that have a discriminatory impact. Accommodation means changing the rule or practice to incorporate alternative arrangements that eliminate the discriminatory barriers.

DOES THE DUTY TO ACCOMMODATE APPLY TO ALL GROUNDS OF DISCRIMINATION?

The duty to accommodate is most often applied in situations involving persons with physical or mental disability (including previous or current addiction to drugs or alcohol) but it also applies to all other grounds covered by the Canadian Human Rights Act such as race, national or ethnic origin, colour, religion, age, sex (including pregnancy), sexual orientation, marital status, family status, and conviction for which a pardon has been granted.

The duty to accommodate arises from two federal statutes: the Canadian Human Rights Act and the Employment Equity Act. Both acts share a common purpose and supplement each other.

The Canadian Human Rights Act

The Canadian Human Rights Act provides that the special needs of a person relating to a prohibited ground of discrimination must be accommodated unless the employer or service provider can prove that to do so would be an undue hardship.

Section 2 underlines the importance of this principle by incorporating the duty of accommodation directly into the Purpose section of the Act. It states:

" The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted."

A person who is denied accommodation can file a complaint with the Canadian Human Rights Commission. Complaints can be made in relation to any aspect of employment, including pre-employment testing, the working environment, training and promotions.

The Employment Equity Act

The goal of the Employment Equity Act is to eliminate systemic discrimination against designated group members and accommodate their different needs. Employers subject to the Act are required to develop and implement an employment equity program to remove barriers for women, members of visible minorities, Aboriginal persons, and people with disabilities, in order to achieve a representative workforce.

Under the Employment Equity Act, employers are required to review employment systems, policies and practices to identify and eliminate barriers against designated groups. They must also undertake policies and programs to correct under-representation and provide for reasonable accommodation of differences in the workplace. Many of the activities required as part of the employment system review would be similar or identical to those suggested as part of this Guide.

The Employment Equity Act has two specific provisions relating to reasonable accommodation:

• Section 5 of the Act provides that "every employer shall implement employment equity" by, among other measures, "making such reasonable accommodations as will ensure that persons in designated groups achieve a degree of representation" commensurate with their representation in the Canadian workforce and their availability to meet reasonable occupational requirements.
• Section 10 of the Act specifies that an employer shall prepare an "employment equity plan" that provides for "reasonable accommodations [...] to correct [...] under-representation."

WHAT DO THE COURTS SAY?

The duty to accommodate is a legal obligation, which has been affirmed and clarified by the courts, including the Supreme Court of Canada.

In the Meiorin and Grismer cases, the Court proposed that employers and service providers should no longer simply rely on an individualized accommodation response to requests from employees who face barriers in the workplace. As a result, employers and service providers must make sure that they build accommodation into their policies and practices at the design stage, up to the point of undue hardship. Even when every effort has been made to ensure corporate activities are free from discrimination, there will be circumstances where the needs of a specific employee will require an individualized adjustment in the workplace. In these circumstances, an employee should have access to an individual accommodation.

In Central Okanagan School District No. 23 v. Renaud, the Supreme Court states that a union shares joint responsibility with the employer to seek to accommodate an employee, and both are equally liable if nothing is done.

In Québec (Commission des droits de la personne et des droits de la jeunesse) et Mercier c. Montréal, the Supreme Court ruled that employees who are perceived to have disabilities are also protected by prohibitions against discrimination on the basis of handicap or disability.

Further information on these court decisions on the duty to accommodate is provided in Appendix B — Key Court Decisions.

CAN ACCOMMODATION BE DENIED?

Accommodation can only be denied if a rule, standard or practice is based on a bona fide occupational requirement (BFOR) or on a bona fide justification (BFJ).²

A bona fide occupational requirement (BFOR) is a standard or rule that is integral to carrying out the functions of a specific position. For a standard or a rule to be considered a BFOR, an employer has to establish that any accommodation or changes to the standard or rule would create an undue hardship. When a standard or rule is a BFOR, an employer is not expected to change it to accommodate an employee. However, to be as inclusive as possible, an employer should still explore whether some form of accommodation is possible anyhow.

In its rulings in the Meiorin and Grismer cases, the Supreme Court of Canada sets out the steps an employer or service provider must take in order to show a BFOR or BFJ (see Appendix B — Key Court Decisions).

According to the Court, failure to accommodate will only be justified where it would be impossible to accommodate without incurring undue hardship. The courts have not provided a comprehensive definition of what is to be considered "accommodation" or "undue hardship", however they have indicated that a considerable measure of hardship must be anticipated in ensuring accommodation.

WHAT IS "UNDUE HARDSHIP"?

Undue hardship describes the limit beyond which employers and service providers are not expected to accommodate. Undue hardship usually occurs when an employer or service provider cannot sustain the economic or efficiency costs of the accommodation.

Section 15(2) of the Canadian Human Rights Act states that "it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost" in order for the accommodation to be considered too much of a burden.

If accommodating one person would pose an undue risk to the health or safety of that person or others, an employer or service provider may be able to establish undue hardship.

The cost of a proposed accommodation may be considered unduly high if it affects the very survival of the organization or business, or if it threatens to change its essential nature. The relative importance of these factors will vary from case to case.

FOR MORE INFORMATION

Further detailed information on the duty to accommodate, BFOR/BFJ and undue hardship can be found on our website.

2 Bona fide occupational requirements (BFOR) apply to workplace issues while bona fide justifications (BFJ) apply to issues related to service delivery.