Sometimes people need to be treated differently to prevent or reduce discrimination. As an employer or service provider, you have an obligation to take steps to eliminate different and negative treatment of individuals, or groups of individuals based on prohibited grounds of discrimination. This is called your duty to accommodate, and it applies both to your employees and the public you serve.
The duty to accommodate means that sometimes it is necessary to treat someone differently in order to be fair. For example, asking all job applicants to pass a written test may not be fair to a person with a visual disability. In such cases, the duty to accommodate may require that alternative arrangements be made to ensure full participation of a person or group.
While it is often necessary to accommodate people’s needs on an individual basis, the courts have made it clear that federal organizations should build accommodation into the way they do business as much as possible. For example, rather than making individual accommodations for blind employees, you should have office policies in place to ensure that all office software is accessible.
The idea is to prevent barriers to accessibility from occurring in the first place, rather than to remove them retroactively.
What is undue hardship?
The duty to accommodate has limits. Sometimes accommodation is not possible because it would cause an organization “undue hardship.”
Under the Canadian Human Rights Act, an employer or service provider can claim undue hardship when adjustments to a policy, practice, by-law or building would cost too much, or create risks to health or safety. There is no precise legal definition of undue hardship or a standard formula for determining undue hardship. Each situation should be viewed as unique and assessed individually.
It is not enough to claim undue hardship based on an assumption or opinion, or by simply saying there is some cost. To prove undue hardship, you will have to provide evidence as to the nature and extent of the hardship.
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