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8.5.1  References

• The Act, 5(b), 6(a) 10(1)(a)(c)
• The Canadian Human Rights Act
• Assessment Factors 5.1 to 5.3
• HRDC Guidelines 6 p.38, & 7 p.13
• Treasury Board Draft Guideline
• CHRC The Duty to Accommodate, An Interpretive Commentary
• Barrier Free Employers, Practical Guide for Job Accommodation for People with Disabilities, CHRC Internet site at www.chrc-ccdp.ca.

8.5.2  The Importance of Accommodation

The duty to accommodate is the key to employment rights. One can argue that the right to accommodation is the right to equality: it's what allows employees and job applicants with special needs to compete in the work force on a level playing field. Full and effective realization of the "duty to accommodate" is integral to the achievement of substantive equality. Accommodation helps ensure that the employment opportunities of employees and applicants are not unfairly limited and, in so doing, allows employers to gain access to a wider, more diverse pool of talent.

The duty to accommodate can be found in both the Employment Equity Act which applies to members of designated groups, and the Canadian Human Rights Act which requires employers to accommodate all employees and applicants with special needs.

Accommodation should address both physical accessibility issues and the need for adjustments to policies and procedures. Needs that must be accommodated result from proscribed grounds of discrimination listed in the CHRA which include disability, race, age, sex, colour, religion, national or ethnic origin, marital or family status, and sexual orientation.

The EEA

Section 5 of the Employment Equity Act requires employers to make such reasonable accommodations as will ensure that designated group members will achieve fair representation in the workforce.

The CHRA

The Canadian Human Rights Act was amended on June 30, 1998 through Bill S-5 to specifically include the duty to accommodate. The Act requires employers and, where applicable, unions, to accommodate the needs of employees and job applicants to the point of "undue hardship". Failure to accommodate short of undue hardship can have the effect of discrimination. The burden is on employers to prove that in cases where accommodation was not provided, it was a case of "undue hardship... considering health, safety and cost".

Bill S-5 changed Section 2 of the Act which describes the CHRA's overall purpose, to read 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 have their needs accommodated, consistent with their duties and obligations as members of society...." Furthermore, the preamble to the Bill now notes that "accommodating the needs of persons with disabilities is particularly important to ensure that they can be full participants in and contributors to Canadian society".

The employer's responsibility extends beyond the EEA

Although the primary responsibility of a compliance officer is to ensure compliance with the EEA, as a representative of the CHRC, there is an obligation to respond where one becomes aware of an employment policy or practice which has been found to be discriminatory through existing jurisprudence. In discussing this requirement with employers, officers should ensure that employers understand that the duty to accommodate extends beyond the needs of designated group members and includes all employees and job applicants with special needs as required by the CHRA.

Interpretive commentary

In June 1997, the Commission released an Interpretive Commentary on The Duty to Accommodate, appended to this Chapter. This document outlines minimum requirements; it is being revised to reflect recent amendments and more stringent standards related to the need to accommodate to the point of undue hardship introduced through Bill S-5.

Barrier Free Employers CHRC Guide

The CHRC has produced a Guide for Job Accommodation or People with Disabilities which is available on the Internet at www.chrc-ccdp.ca. Employers who wish information on this issue should be referred to this Guide. A pamphlet is also available from Promotions Branch.

8.5.3  Legal Framework

The Employment Equity Act has four specific provisions relating to accommodation.

Section 5 provides that every employer shall implement employment equity by, among other measures, making such reasonable accommodations as will ensure that persons in a designated group achieve a degree of representation commensurate with their representation in the Canadian workforce and their availability to meet reasonable occupational requirement.

Section 6(a) states the obligation to implement employment equity does not require an employer to take a particular measure which would cause undue hardship to the employer.

Section 10(1)(a) specifies that an employer shall prepare an employment equity plan that specifies short term positive policies and practices for the making of reasonable accommodation for designated group members, to correct the under representation of those persons identified through the workforce analysis.

Section 10(1)(b) specifies that the plan must include a timetable for the implementation of accommodation measures within the short term.

Assessment Factors

• Does the employer's approach to accommodation recognize the need to ensure that applicants and employees from all designated groups are accommodated up to the point of undue hardship?
  
• Does the approach to accommodation address the provision of required technical aids, physical accessibility issues and the need for adjustments to policies or procedures?
  
• Does the manner in which accommodation is achieved involve individual assessment of an employee's needs rather than group-based generalizations;
  
• Does the approach to providing accommodation respect the dignity of the individual, maximize the individual's autonomy and minimize risk?
  
• Are there effective implementation mechanisms in place including the pro-active communication of the duty to accommodate to managers, employees and candidates?

8.5.5  Does the Employer Have a Written Policy?

The Act does not require that the policy be written. However, the best way to ensure that the duty to accommodate is fulfilled is to adopt a systematic, active approach which is then effectively communicated to managers, employees and job applicants. While such an approach is not explicitly required by the law, it can help minimize the possibility of disputes arising from a purported failure to accommodate.

If there are no written policy procedures, the employer must still be able to demonstrate that the minimum standards have been achieved through other means.

While the employer clearly has a duty to accommodate, individuals requiring accommodation are expected to be reasonable when considering proposals that effectively respond to their needs and not demand accommodation which is clearly impractical.

The following table includes the key elements of a formal accommodation policy to guide officers in their assessment:

8.5.6 Assessing Accessibility

Accessibility is central to the achievement of employment equity, especially to persons with disabilities. In conducting an on-site visit, compliance officers will make a determination of whether or not the workplace is accessible. Some of the key elements to examine include:

• parking spaces
  
• entrance and exit ramps
  
• washrooms
  
• elevators and stairways
  
• corridor widths
  
• floor surfaces
  
• cafeteria and food outlets
  
• drinking fountains
  
• boardrooms
  
• office equipment and workstations
  
• lunch and meeting rooms
  
• regulation clothing and uniforms.

Employers should have a policy or guidelines on workplaceaccessibility.

If the workplace is not fully accessible, the employer should have a plan for ensuring eventual accessibility. If full accessibility is not practical, as a minimum, the employer should take steps to ensure that the place of recruitment is accessible so that there is no adverse impact on persons with disabilities during the staffing process. This could be as simple as holding the interview in a fully accessible location outside the office, such as a hotel or community centre; giving an individual with a speech impediment longer time for an interview or the opportunity to write answers; giving a disabled applicant a taxi chit to travel to the recruitment office where this is in a remote location.

More than any other provincial jurisdiction, the Ontario Human Rights Commission has published useful guidelines for Assessing Accommodation Requirements for People with Disabilities. These are available from the Commission library.

8.5.7  What Constitutes Undue Hardship

The Commission is in the process of developing a position paper on the issue of undue hardship, as a result of the recent amendments to the Canadian Human Rights Act. Until such time as this is available, the following guidelines may be useful.

If a qualified individual could be unfairly disadvantaged by existing policies, procedures, or facilities, there is a duty to accommodate unless accommodation would cause undue hardship. Undue hardship takes into account such factors as:

• the cost of the accommodation, examined in the context of the size and financial state of the employer;
  
• disruption of operations or collective agreements;
  
• the interchangeability of workforce and facilities;
  
• safety risks; and
  
• employee morale.

The fact that hardship must be "undue" to remove the duty to accommodate means that some inconvenience and costs are acceptable. Employers should generally attempt to accommodate an individual before concluding that it would result in undue hardship. When an accommodation is not provided, the employer must be prepared to demonstrate that it would, in fact, cause undue hardship and that no realistic alternative was available.

When assessing potential hardship, it is necessary to consider all possible accommodation along with various methods of reducing hardship, such as:

• phasing-in major accommodations;
  
• making use of special budgets or external sources of funding;
  
• negotiating changes to collective agreements;
  
• identifying alternative ways of completing job duties;
  
• shifting tasks between employees;
  
• developing options which minimize safety risks;
  
• permitting individuals to consciously assume a degree of increased risks for themselves, within the bounds of safety; and
  
• communicating an accommodation policy and the rationale for it to the entire workforce.
  

8.5.8 Where the Employer Has no Accommodation Policy

This assessment factor comes into play only where a policy related to accommodation does not appear to already exist.

Where a policy is not yet in place, the Compliance Review Officer must be satisfied that the employer understands that the obligation to accommodate an individual to the point of undue hardship remains, both at the point of application as well as once the employee is within the organization.

In these cases, the compliance officer must seek to clarify that alternative procedures to ensure accommodation takes place exist. It should be remembered that the five standards outlined in assessment factor 5.1 must be met by these procedures.

If there are no procedures in place, the employment equity plan must be reviewed to ensure that it contains a commitment to develop and implement an appropriate accommodation plan.

8.5.9 What the Plan Might Include
HRDC Guideline 7, p. 15

HRDC guidelines offer advice to employers on what elements a plan might include in order to ensure that reasonable accommodation is provided:

• a written accommodation policy for the organization, if one does not already exist, or a process for developing such a policy;
  
• an outline of the procedures which individuals and managers should follow in making and responding to requests for accommodation, if such an outline does not exist, or a process for developing such an outline;
  
• a method for bringing the accommodation policy and procedures to the attention of all concerned; and
  
• funding mechanisms to ensure that the accommodation is not prevented or delayed by ambiguity as to the source of required resources.

The policy and procedures need not be long and detailed. Nevertheless, they should be sufficient to ensure that reasonable accommodation is provided when requested by individual applicants and employees from designated groups.

8.5.10 The Plan Must Include a Short Term Timetable

The employment equity plan should contain a timetable for the implementation of each activity or measure related to accommodation. This timetable should ensure continuous and steady progress towards the goal of employment equity.

As with the implementation of changes to employment systems, the compliance officer should consider the following factors when assessing the appropriateness of the timetable:

• the significance of the measures,
  
• internal and external resources and constraints, and
  
• the complexity and costs of implementation.

If some measures cannot be implemented in the short term, the employer should recognize that there exists an obligation in the Canadian Human Rights Act to provide for the accommodation of the needs of individual applicants and employees to the point of undue hardship.

Assessing Compliance
8.5.11 Preliminary Analysis

In conducting the preliminary analysis, the compliance officer will rely on the documentation provided in Section 6 of the audit survey questionnaire. Employers are requested to provide policies and/or practices regarding accommodation of the special needs of all four designated groups.

The Act does not require that the policy be written, but the compliance officer should start with requesting same. If the employer maintains that the organization has an explicit policy but it is not a formal, written document, it will be necessary to seek evidence that would verify this position. This might include evidence that an appropriate policy was articulated through other means such as regular staff meetings, training sessions, newsletters or other communication instruments.


8.5.12 Verifying Conclusions

In verifying the employer's compliance with this statutory requirement, compliance officers should assess the elements covered at the table at Sub-section 8.5.4 under Assessment Factor 5.1. They apply to the following:

• the employer has a clear policy on accommodation and the policy covers all designated group employees and applicants;
  
• there is a clear process and procedures by which accommodation is approved, and an appeal procedure when accommodation is denied;
  
• accommodation is effectively communicated to managers, line supervisors and unions who are aware of their duty to accommodate and to employees and applicants who are aware of their right to accommodation;
  
• there are de facto examples of accommodation being granted and/or of accommodation being denied;
  
• the facilities are fully accessible to persons with physical disabilities and if not, there is a plan and/or schedule for reaching full accessibility;
  
• interim measures are in place to ensure that persons with physical disabilities are able to apply for positions should the human resource work site not be fully accessible.

8.5.13  Undertaking

Where an employer is not in compliance with any of the requirements related to this statutory requirement, the Act requires:

That (name of employer) develop an undertaking to:

• develop an accommodation policy and the procedures to be followed by managers and employees should the need for accommodation arise. The accommodation policy should clearly indicate that the requirement to provide accommodation includes persons with disabilities as well as other designated groups, both for current employees and applicants;
  
• develop a strategy to communicate the new written accommodation policy and procedures to managers and staff;
  
• develop a policy and strategy to ensure the work place becomes fully accessible;
  
• implement, in a timely fashion, steps to ensure that the primary facilities used for recruitment, job application and hiring are fully accessible.