Overview

Preventing Discrimination

Tools and Resources

Undue Hardship

Questions in this section (click on question):

8. What is undue hardship
9. What are some factors to consider in determining undue hardship?
10. Do financial costs count as undue hardship?
11. What if accommodation involves workplace health and safety risk?
12. What are some factors not to consider in determining undue hardship?

8. 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.

There is no formula for deciding what costs represent undue hardship and there is no precise judicial definition of “undue hardship.” However, remember that “undue hardship” implies that some hardship may be involved in the duty to accommodate. Employers and service providers are expected to exhaust all reasonable possibilities for accommodation before they can claim undue hardship.
  
9. What are some factors to consider in determining undue hardship?

Section 15 (2) the Canadian Human Rights Act says undue hardship exists when “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.” (Emphasis added.)

All three of these factors—health, safety and cost—should be considered when determining if an accommodation creates an undue hardship.

It is not enough to offer subjective assumptions or impressionistic evidence about what is or is not possible, nor can one simply say, “It costs too much to accommodate” or “Accommodation would present health and safety concerns.” To prove undue hardship, you have to provide evidence.

The Supreme Court has listed other factors that may also be considered:

• the type of work performed,
• the size of the workforce,
• the interchangeability of job duties,
• financial ability to accommodate,
• the impact on a collective agreement, and
• impact on employee morale.

These factors will vary from case to case, as will the importance of each factor.

10. Do financial costs count as undue hardship?

In some cases, financial cost make accommodation impossible. The impact of financial costs of accommodation will vary widely depending on the size of the employer.

Large corporations, for example, would find it hard to prove undue hardship on the basis of cost alone, as would federal departments and agencies. Such organizations usually have the budgetary and organizational scale and flexibility to accommodate special needs at relatively little cost.

Consider these factors when determining if financial costs pose an undue hardship:

• the employer’s size and financial situation,
• the ability to amortize the costs or to mitigate the hardship in some other way,
• the number of people the accommodation may benefit,
• the possibility of phasing-in major accommodations, and
• the availability of special budgets, reserve funds or external sources of funding, such as government funding or tax incentives.

11. What if accommodation involves workplace health and safety risks?

An employer might find that accommodating an employee creates an undue hardship based on health, safety or both.

When considering the impact of an accommodation on health and safety, look at the extent of the risk and identify anyone who would bear that risk². However, balance this risk against the right of employees to participate fully in the workplace. The goal is not absolute safety, but reasonable safety³.

If the risk is borne entirely by the employee asking for the accommodation, then a higher degree of risk is acceptable. However, the employer must fully inform the employee of the nature of the risk, so that the employee can decide whether to accept that risk.

For example, an employee who wears a turban may be excused from wearing a hard hat in the workplace. In this case, the employee has a higher risk of injury, but the risk is the employee’s alone.

Where the risk affects other employees or customers, much less risk is acceptable. The employer must assess the risk to others caused by accommodation and may then decide that this risk would cause undue hardship. If so, the employer should be prepared to provide objective evidence that it honestly believed that an unreasonable risk existed.

Employers considering the health and safety impacts of accommodation must still remember their responsibilities for health and safety and to the workers compensation board. They should consult appropriate representatives before settling on an accommodation. Nevertheless, the existence of a health and safety rule (such as a hard hat requirement) does not automatically constitute a bona fide occupational requirement.

² Woolverton v. BC Transit operating HandyDART, 1992, 19 C.H.R.R. D/200
³ British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), unreported, S.C.C. December 16, 1999, also known by the name Grismer.

12. What are some factors not to consider in determining undue hardship?

Employers cannot claim that there is an undue hardship if that claim contradicts the purpose of, and values inherent in, human rights legislation. For example, an employer cannot claim that any of the following factors will cause undue hardship:

• customer or public preference that is based on prejudice or stereotyping;
• discriminatory objections, such as other employees’ objections to accommodations based on prejudice or attitudes inconsistent with human rights values; or
• threatened grievances by other employees.