The Duty to Accommodate

Human rights laws in Canada do not simply prohibit employers and other organizations from taking overtly discriminatory actions against individuals. These laws, such as the Ontario Human Rights Code or the Canadian Human Rights Act, also require an employer to take positive steps to eliminate or reduce barriers in the workplace. This is known as the duty to accommodate.

The duty to accommodate recognizes that it is sometimes necessary to treat a person differently from others in order to ensure they are treated fairly in light of their individual characteristics, needs, or circumstances. The duty is aimed at removing barriers and ensuring individuals’ the ability to fully participate in the workplace and society at large.

In the employment context, the duty to accommodate often arises when an employer seeks to apply a rule or standard to all employees in a way that has negative consequences for some employees due to a prohibited ground of discrimination. (See “Am I being discriminated against at work?”  for more information on the prohibited grounds of discrimination.)

In these circumstances, the employer may be required to accommodate the employee by modifying the rule as it applies to the employee, by providing additional assistance or making changes to the physical environment or workplace culture, or even by providing an exemption for the employee.

For example:

• An employer could be required to modify dress code requirements for some employees if the dress code conflicts with an employee’s religious dress requirements.
• An employer may be required to provide employees with modified duties, specialized work equipment, or changes to their physical workspace if they cannot perform their duties for reasons such as pregnancy or disability.
• An employer could be required to allow for alternative work arrangements, such as compressed hours, flexible hours or a flexible place of work to accommodate childcare or other family obligations.

Employee Responsibilities

The nature of the accommodation required will vary according to each individual’s unique needs, which must be assessed and accommodated on an individualized basis.

While employers will sometimes be under an obligation to inquire into whether an employee needs accommodation, it is generally the responsibility of the employee to communicate his or her need for accommodation to the employer.

Employees are also required to cooperate and be reasonable during the accommodation process. This may involve providing information to help the employer understand what it needs to do to provide accommodation. But employers are entitled to only the information necessary to determine what accommodation is required.

Finally, employees may be required to accept accommodations that appropriately address their needs, even if the accommodations are not ideal or exactly what the employees had asked for.

Accommodating to the Point of Undue Hardship

The duty to accommodate is not limitless. Even where it seems like the employer may have failed to provide necessary accommodation, the employer may nonetheless justify its policy, practice or expectation.

For instance, an employer may be able to establish that accommodating an employee would cause the employer such significant hardship that it should not be required to provide accommodation. Examples of undue hardship can include changes that endanger an employee’s health and safety or the health and safety of others, or changes that impose a financial cost that is so significant that it threatens the viability of the employer’s business. That being said, the standard on the employer is high and recognizes that employer may be required to suffer some hardship in order to provide accommodation.

Conclusion

Whether an employer or other organization has fulfilled its duty to accommodate an individual – and whether it will be able to establish a defence if it has not – is a very individualized and fact-based inquiry. If you believe that an employer or service-provider has failed to accommodate you on the basis of a prohibited ground, you may have been subject to discrimination, and you should seek advice from a human rights lawyer.

We are here to help: Consult one of our experienced human rights lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a complaint of discrimination against your employer.