REASONABLE ACCOMMODATION OR THE DUTY TO ACCOMMODATE REASONABLY

DECONSTRUCT THE ELEMENTS OF ACCOMMODATION IN A CANADIAN CONTEXT è WHAT IS DISCRIMINATION? WHAT IS ACCOMMODATION? WHAT IS THE "DUTY TO ACCOMMODATE" LOOK LIKE IN PRACTICE? WHAT ARE THE “PROHIBITED GROUNDS”? WHAT IS UNDUE HARDSHIP? WHAT ARE THE METHODS/GUIDELINES FOR REDUCING HARDSHIP.

[PROVISO è IT IS IMPORTANT TO UNDERSTAND THAT THE HUMAN RIGHTS CODE DOES NOT EMPHASIZE “REASONABLE ACCOMMODATION” AS A GUIDING PRINCIPLE – RATHER THE “DUTY TO ACCOMMODATE” [?] è REASONABLE ACCOMMODATION UNTIL NOW HAS REFERRED TO THE STEPS TAKEN TO FULFILL THE DUTY è EX: AN EMPLOYER [ALSO] HAS A DUTY TO ACCOMMODATE THE SPECIFIC NEEDS OF EMPLOYEES SO THAT THEY CAN PERFORM TO THE BEST OF THEIR POTENTIAL.]

WHAT IS THE "DUTY TO ACCOMMODATE" LOOK LIKE IN PRACTICE?

THE [ONTARIO HUMAN RIGHTS] CODE PROVIDES THE RIGHT TO BE FREE FROM DISCRIMINATION, AND THERE IS A GENERAL CORRESPONDING DUTY TO PROTECT THE RIGHT: THE "DUTY TO ACCOMMODATE.” THE DUTY ARISES WHEN A PERSON'S RELIGIOUS BELIEFS CONFLICT WITH A REQUIREMENT, QUALIFICATION OR PRACTICE. THE CODE IMPOSES A DUTY TO ACCOMMODATE BASED ON THE NEEDS OF THE GROUP OF WHICH THE PERSON MAKING THE REQUEST IS A MEMBER. ACCOMMODATION MAY MODIFY A RULE OR MAKE AN EXCEPTION TO ALL OR PART OF IT FOR THE PERSON REQUESTING ACCOMMODATION.

SUBSECTION 11(2) OF THE CODE IMPOSES THE DUTY TO ACCOMMODATE IN CASES OF CONSTRUCTIVE DISCRIMINATION:

11(2). THE COMMISSION, THE BOARD OF INQUIRY OR A COURT SHALL NOT FIND THAT A REQUIREMENT, QUALIFICATION OR FACTOR IS REASONABLE AND BONA FIDE IN THE CIRCUMSTANCES UNLESS IT IS SATISFIED THAT THE NEEDS OF THE GROUP OF WHICH THE PERSON IS A MEMBER CANNOT BE ACCOMMODATED WITHOUT UNDUE HARDSHIP ON THE PERSON RESPONSIBLE FOR ACCOMMODATING THOSE NEEDS, CONSIDERING THE COST, OUTSIDE SOURCES OF FUNDING, IF ANY, AND HEALTH AND SAFETY REQUIREMENTS, IF ANY.

IN PRACTICE IT IS MANIFESTED IN THE REQUIREMENT OF EMPLOYERS TO IDENTIFY AND CHANGE ANY RULES, EXPECTATIONS, OR PROCEDURES THAT HAVE OR MAY HAVE A DISCRIMINATORY IMPACT BASED ON [THE CHRA'S PROHIBITED GROUNDS {PROTECTED PERSONS?}].

[[QUESTION ASIDE: IN AN EMPLOYMENT EQUITY CONTEXT WE TALK ABOUT “DESIGNATED GROUPS” {?} IN THE HUMAN RIGHTS CONTEXT WE TALK ABOUT “PROHIBITED GROUNDS” AND “PROTECTED PERSONS” {?}]

THESE ARE THE SIXTEEN PROHIBITED GROUNDS FOR DISCRIMINATION:

• RACE—COMMON DESCENT OR EXTERNAL FEATURES SUCH AS SKIN COLOUR, HAIR TEXTURE, FACIAL CHARACTERISTICS

• ANCESTRY—FAMILY DESCENT

• PLACE OF ORIGIN—COUNTRY OR REGION

• COLOUR—ASSOCIATED WITH RACE

• ETHNIC ORIGIN—SOCIAL, CULTURAL OR RELIGIOUS PRACTICES DRAWN FROM A COMMON PAST

• CITIZENSHIP—~MEMBERSHIP IN A STATE OR NATION

• CREED—RELIGION OR FAITH

• SEX—DISCRIMINATION CAN BE SEXUAL IN NATURE, OR BECAUSE OF GENDER OR PREGNANCY. THIS ALSO INCLUDES THE RIGHT TO BREASTFEED IN PUBLIC AREAS OR IN THE WORKPLACE. SEX ALSO INCLUDES THE NOTION OF GENDER IDENTITY

• SEXUAL ORIENTATION—INCLUDES LESBIAN, GAY, BISEXUAL OR HETEROSEXUAL

• HANDICAP— {BROAD CATEGORY} PHYSICAL DISABILITY OR DISFIGUREMENT CAUSED BY INJURY, ILLNESS OR BIRTH DEFECT (INCLUDES DIABETES, EPILEPSY, PARALYSIS, AMPUTATION, LACK OF PHYSICAL COORDINATION, BLINDNESS OR VISUAL IMPAIRMENT, DEAFNESS OR HEARING IMPAIRMENT, MUTENESS OR SPEECH IMPAIRMENT AND RELIANCE ON A GUIDE DOG, WHEELCHAIR OR OTHER REMEDIAL DEVICE); LEARNING DISABILITY OR ANY DYSFUNCTION IN THE ABILITY TO UNDERSTAND OR USE SYMBOLS OR SPEECH, DEVELOPMENTAL DISABILITY, PSYCHIATRIC DISABILITY OR AN INJURY OR DISABILITY FOR WHICH BENEFITS WERE CLAIMED OR RECEIVED UNDER THE WORKPLACE SAFETY AND INSURANCE ACT, 1997

• AGE—L 8-65 YEARS (EMPLOYMENT); 16+ YEARS (ACCOMMODATION); 18+ YEARS (ALL OTHER AREAS)

• MARITAL STATUS—INCLUDING COHABITATION, WIDOWHOOD, SEPARATION

• FAMILY STATUS—THE PARENT/CHILD RELATIONSHIP

• SAME SEX PARTNERSHIP STATUS—THE STATUS OF LIVING WITH A PERSON OF THE SAME SEX IN A CONJUGAL RELATIONSHIP OUTSIDE MARRIAGE.

• RECORD OF OFFENCES—PROVINCIAL OFFENCES OR PARDONED FEDERAL OFFENCES (IN EMPLOYMENT)

• RECEIPT OF PUBLIC ASSISTANCE—IN HOUSING ONLY

EXCEPTIONS TO THE PROHIBITED GROUNDS{?}

THERE ARE SOME EXCEPTIONS TO THESE PROHIBITED GROUNDS IN THE AREA OF EMPLOYMENT, SUCH AS:

• AN ORGANIZATION THAT SERVES A GROUP PROTECTED BY THE CODE, SUCH AS RELIGIOUS, EDUCATIONAL OR SOCIAL INSTITUTIONS SERVING ETHNIC GROUPS, PEOPLE WITH DISABILITIES, RELIGIOUS GROUPS, ETC, MAY CHOOSE TO EMPLOY ONLY MEMBERS OF THAT GROUP;

• AN EMPLOYER MAY CHOOSE TO HIRE OR NOT HIRE, OR TO PROMOTE OR NOT PROMOTE HIS OR HER OWN SPOUSE, CHILD OR PARENT OR THE SPOUSE, CHILD OR PARENT OF AN EMPLOYEE,

• AN EMPLOYER MAY DISCRIMINATE ON THE BASIS OF AGE, SEX, RECORD OF OFFENCES OR MARITAL STATUS IF THESE ARE GENUINE REQUIREMENTS OF THE JOB. FOR EXAMPLE, A SHELTER FOR BATTERED WOMEN MAY CHOOSE TO HIRE ONLY WOMEN AS COUNSELLORS; A CLUB MAY ONLY HIRE MALE ATTENDANTS TO WORK IN THE MEN’S LOCKER ROOM; OR A CHILD CARE FACILITY MAY REFUSE TO HIRE SOMEONE CONVICTED OF CHILD MOLESTING ON THE GROUND THAT THE HIRING WOULD POSE A SAFETY RISK TO THE CHILDREN. IN SUCH INSTANCES, THE EMPLOYER MUST CONSIDER WHETHER ANY ACCOMMODATION CAN BE MADE TO ENABLE THAT PERSON TO WORK IN THE POSITION.

WHAT IS UNDUE HARDSHIP?

[IN CANADA, EMPLOYERS AND SERVICE PROVIDERS HAVE THE RESPONSIBILITY OF ACCOMMODATING SHORT OF UNDUE HARDSHIP].

{BASICALLY} UNDUE HARDSHIP MEANS THAT THE COST OF PROVIDING ACCOMMODATION FOR SOMEONE NEGATIVELY AFFECTS THE NATURE OF THE BUSINESS OR SERVICE

THE TERM "UNDUE HARDSHIP" REFERS TO THE LIMIT OF AN EMPLOYER'S CAPACITY TO ACCOMMODATE WITHOUT EXPERIENCING AN UNREASONABLE AMOUNT OF DIFFICULTY.

EMPLOYERS ARE OBLIGATED TO PROVIDE ACCOMMODATION "UP TO THE POINT OF UNDUE HARDSHIP." THIS MEANS AN EMPLOYER IS NOT EXPECTED TO PROVIDE ACCOMMODATION IF DOING SO WOULD BRING ABOUT UNREASONABLE DIFFICULTIES BASED ON HEALTH, SAFETY, AND/OR FINANCIAL CONSIDERATIONS.

THERE IS NO PRECISE LEGAL DEFINITION OF UNDUE HARDSHIP, NOR IS THERE A STANDARD FORMULA FOR DETERMINING UNDUE HARDSHIP. EACH SITUATION IS UNIQUE AND SHOULD BE EVALUATED INDIVIDUALLY. UNDUE HARDSHIP USUALLY OCCURS WHEN AN EMPLOYER CANNOT SUSTAIN THE ECONOMIC OR EFFICIENCY COSTS OF THE ACCOMMODATION.

GENERALLY, SOME HARDSHIP CAN BE EXPECTED IN MEETING THE DUTY TO ACCOMMODATE. EMPLOYERS ARE REQUIRED TO CAREFULLY REVIEW ALL OPTIONS BEFORE THEY DECIDE THAT ACCOMMODATION WOULD CAUSE UNDUE HARDSHIP. IT IS NOT ENOUGH TO CLAIM UNDUE HARDSHIP BASED ON AN ASSUMPTION OR AN OPINION. TO PROVE UNDUE HARDSHIP, EMPLOYERS HAVE TO PROVIDE EVIDENCE.

OPERATIVE ISSUES è

1) THE CONCEPT OF UNDUE HARDSHIP IS A RELATIVE ONE, [EX: DETERMINED BY THE NUMBER OF PEOPLE MAKING THE REQUEST, THE COST OF THE REQUEST AND THE SIZE OF THE INSTITUTION.]

2) THE BURDEN FOR PROVING UNDUE HARDSHIP LIES WITH THE PERSON RESPONSIBLE FOR THE ACCOMMODATION.

THE DUTY TO ACCOMMODATE IS LIMITED TO THE STEPS THAT MAY BE REQUIRED TO ACCOMMODATE, SHORT OF UNDUE HARDSHIP è YET, EVEN WHEN SUCH FACTORS ARE IDENTIFIED, AT THE CENTRE OF MANY DISPUTES OVER ACCOMMODATION IS THE QUESTION OF WHEN THE THRESHOLD OF UNDUE HARDSHIP HAS BEEN REACHED.

QUESNEL CASE è v. London Educational Health Centre (1995), 28 C.H.R.R. D/474). == HISTORICALLY PIVOTAL è STILL RANCOROUS è CASE INVOLVING A WOMEN IN A WHEELCHAIR AND A CHIROPRACTOR

THE SUPREME COURT OF CANADA HAS MENTIONED SEVERAL FACTORS RELEVANT TO AN ASSESSMENT OF WHETHER HARDSHIP IS UNDUE, INCLUDING:

1. FINANCIAL COST,

2. DISRUPTION OF A COLLECTIVE AGREEMENT,

3. THE MORALE OF OTHER EMPLOYEES,

4. INTERCHANGEABILITY OF THE WORK FORCE AND FACILITIES,

5. THE SIZE OF THE EMPLOYER'S OPERATION,

6. SAFETY,

7. INTERFERENCE IN THE OPERATION OF THE EMPLOYER'S BUSINESS,

8. AND THE OVERALL ECONOMIC CLIMATE.

THE ONTARIO HUMAN RIGHTS CODE ALSO LISTS:

1. COST [AFFECT ITS ECONOMIC VIABILITY]

2. ALTER THE ESSENTIAL NATURE OF THE ACTIVITY OR BUSINESS,

3. OUTSIDE SOURCES OF FUNDING, AND

4. HEALTH AND SAFETY REQUIREMENTS [POSE A SUBSTANTIAL HEALTH OR SAFETY]

{I POSTED A POWER POINT THAT BREAKSDOWN THE COST, FUNDING AND HEALTH CONSIDERATIONS FURTHER – FROM A COMMISSION PERSPECTIVE}

NOTE THAT, IN THE OPINION OF THE ONTARIO HUMAN RIGHTS COMMISSION (“THE COMMISSION”), ADMINISTRATIVE INCONVENIENCE WILL NOT CONSTITUTE UNDUE HARDSHIP.

WHAT IS WORKPLACE DISCRIMINATION?

DISCRIMINATION REFERS TO THE DENIAL OF ACCESS TO EQUAL OPPORTUNITIES TO A PERSON OR GROUP ON THE BASIS OF DIFFERENCES THAT ARE BEYOND THEIR CONTROL.

TODAY ACCOMMODATION – IN A PREVENTATIVE SENSE, IT MEANS A PROHIBITIONS AGAINST “DIFFERENCE DISCRIMINATION” — IN A PROACTIVE SENSE, IT MEANS TO ADAPT, ADJUST OR ELIMINIATE FORMS OF DISCRIMINATION TO ENABLE A PERSON OR GROUP TO CONTRIBUTE FULLY TO SOCIETY.

RULE + NEGATIVE IMPACT + PROTECTED CHARACTERISTIC UNDER HUMAN RIGHTS LEGISLATION = DISCRIMINATION  

MORE SPECIFICALLY è TYPES OF DISCRIMINATORY CONDUCT ARE è (1) HARRASSMENT, (2) SEXUAL HARASSMENT, (3) POISONED ENVIRONMENT, (4) CONSTRUCTIVE DISCRIMINATION & (5) SYSTEMIC DISCRIMINATION

HARASSMENT

Protected groups have the explicit right to freedom from harassment in housing accommodation and employment. The Code defines harassment as “engaging in a course of vexatious [annoying or provoking] comment or conduct which is known or ought reasonably to be known to be unwelcome?’

The most important word in the definition is “unwelcome.” We do not have the right to impose our words or actions on someone if they are not wanted. It does not matter if the person has done this intentionally or unintentionally.

Some people may be shy or afraid to respond to unwelcome comments or actions. That is why the Code includes the words “ought reasonably to be known to be unwelcome?’

For example, everyone is expected to know that racial or ethnic slurs or jokes are unwelcome —the speaker should not need to be told that the comment is unwelcome. However, sometimes it is necessary to point out that certain behaviours are causing discomfort.

“Engaging in a course of” means that a comment or action would probably have to occur more than once for it to be considered harassment. However, an employer need only make a comment such as “People like you have no business here” once to a person of colour or a / woman, for the employee to believe that he or she will not get equal treatment. Comments like these create a poisoned environment for members of that group as well as others.

The principles of harassment (while not explicitly stated in the Code) also apply in the area of services. For instance, if students harass others because of their race, sex, sexual orientation, disability, religion etc., this could be grounds for a complaint. Education is a “service” to which all are equally entitled.

SEXUAL HARASSMENT

Every employee has the right to be free from sexual harassment from other employees, supervisors and customers. Tenants also have a right to freedom from harassment on the basis of sex by the property owner, property owner’s agent, or another tenant.

Sexual harassment occurs when someone receives unwelcome sexual attention and the person making the comments or showing such conduct knows or should reasonably know that the comments or behaviour are offensive, inappropriate, intimidating or hostile.

The Code is also violated when anyone receives a sexual solicitation from a supervisor or other person in a position of authority, if he or she knows or ought reasonably to know it is unwelcome. It is also a violation when a supervisor threatens or penalizes an employee for not complying with the sexual demands. /

The Code prohibits sexual harassment of students by other students, teachers by students and students by teachers as unequal treatment on the basis of sex.

POISONED ENVIRONMENT

A poisoned environment is created by comments or conduct that ridicule or insult a person or group protected under the Code. It violates their right to equal treatment with respect to services, goods and facilities, accommodation and employment. It is also produced when such actions or comments are not directed specifically at individuals. For example, insulting jokes, slurs or cartoons about gays and lesbians or racial groups, or pin-up photos that demean women, all contribute to a poisoned environment for members of those groups.

A poisoned environment can also be created for individuals at whom the insults are not necessarily directed. For example, a heterosexual male may be offended by homophobic jokes because some of his friends may be lesbian, gay or bisexual. Or a person belonging to a racial minority may believe because of insults that he or she will not be treated fairly.

It must be clearly evident that such behaviour is making people feel uncomfortable in a school or work situation. A single incident may or may not be enough to create a poisoned environment. Other factors, such as the seriousness of the behaviour, the relative positions of the persons involved (employer to employee, landlord to tenant, etc.), and/or the impact upon the individual’s access (perceived or real) to equal treatment without discrimination would need to be considered.

The Code asserts that it is the responsibility of the employer to ensure that a poisoned environment does not exist in the workplace. Similarly, it is the responsibility of the teacher and administration as the authority in the school to ensure that a poisoned environment does not exist for students.

CONSTRUCTIVE DISCRIMINATION

Constructive discrimination occurs when a seemingly neutral requirement has a discriminatory effect (or adverse impact) when applied to a group protected under the Code. For example, a requirement that all employees work on Saturdays could discriminate against those who must worship on that day as part of their religious practice. Or a height or weight requirement could in general exclude women and some ethnic or racial minorities from employment positions.

In these cases, in order to avoid a finding of constructive discrimination, the employer or organization would need to prove that:

• the job requirement is bona fide, that is, sincerely believed to be necessary and in an objective sense, necessary for safety, efficiency or economy; and that

• the person from a protected group cannot be accommodated without undue hardship to the employer. That is, it would alter the essential nature of the activity or business, affect its economic viability or pose a substantial health or safety risk.

SYSTEMIC DISCRIMINATION

Systemic discrimination is discrimination that is part of the operating procedures of many organizations, whether a business, service organization or social institution, such as a school, hospital, government office, law court, etc. It can involve various forms of discrimination present in the practices of an organization, some of which may be invisible. It has the effect of denying whole groups of people theft rights or excluding them from participation. For example:

• Racism or prejudice by those in positions of authority may violate the rights of members of certain groups, such as when an organization hires or promotes only White males.

• Biases against groups may mean that they are treated differently. For example, an organization hires only women in clerical positions and only men in sales positions.

• A school may discriminate against people with disabilities in a way that is systemic. For example, there may be no ramps and automatic doors, no accommodating washrooms, no special learning aids or testing procedures, all of which bar people with disabilities from access to the learning opportunities offered.

The Ontario Human Rights Code allows special programs to relieve disadvantage or achieve equal opportunity in order to counter the effects of systemic discrimination. Such programs include measures to remove barriers that discriminate against groups and ensure that disadvantaged groups have the same advantages that others take for granted.

[WHAT ARE THE] KEY LEGAL PRINCIPLES

THE CANADIAN HUMAN RIGHTS ACT (CHRA) HAS ESTABLISHED SEVERAL KEY PRINCIPLES THAT PROTECT THE RIGHTS OF EMPLOYEES AND EMPLOYERS AND HELP CREATE WORKPLACES THAT ARE PRODUCTIVE AND RESPECTFUL. [[IDEA IS è BY TAKING A PROACTIVE APPROACH, EMPLOYERS CAN RESOLVE UNCLEAR SITUATIONS WHERE EMPLOYEES NEED ACCOMMODATION, AND REDUCE THE NUMBER OF COMPLAINTS THAT ARE FILED.

[DIVERSITY, EQUALITY, INDIVIDUAL, RESECT, PROCESS & FAIRNESS]

1) Diversity

The duty to accommodate persons with PROTECTED STATUS means accommodation must be provided in a manner that most respects the dignity of the person.

The guidelines specify that the duty to accommodate requires that the most appropriate accommodation be determined and then be undertaken, short of undue hardship, and that the “most Appropriate” accommodation is that which most respects the dignity of an individual.

Accommodation promotes diversity. It is one way to make sure that workplace policies, practices and facilities reflect all members of society.

2) EQUALITY

Some people or groups of people may have to be treated differently at work. This does not mean they are getting "special treatment". Taking away the barriers that keep them from being equal gives them the same benefits and opportunities as persons who do not have disabilities.

Accommodation works best when it helps make sure that everyone can fully use opportunities and services. It also makes sure that employers - and society - can realize the full potential of the workforce.

3) INDIVIDUAL

There is no set formula for accommodation – each person has unique needs and the guidelines make clear that it is important to consult with the person involved. Each accommodation is different. It must solve the challenge for that specific employer and employee.

4) RESPECT

A successful accommodation solution must respect the dignity of the person being accommodated.

5) PROCESS

The commission has provided that the “accommodation process is a shared responsibility,” with those involved co-operatively engaging in the process, sharing information and availing themselves of potential accommodation solutions.

Accommodation is an ongoing process. People must take the time to review every option to find the best one. Once a solution is in place, people must talk about how it is working.

6) FAIRNESS

Employers have a legal responsibility to deal effectively, quickly and fairly with claims of harassment and discrimination, and can be held liable for a failure to do so.

The guidelines recommend the establishment of an anti-harassment policy and a disability accommodation policy to minimize this liability è According to the commission, such a policy could include an outline of rights and responsibilities, barrier analysis and prevention, preparation and documentation of accommodation plans, and the monitoring and evaluation of implementation. As the commission also points out, voluntary compliance may avoid complaints and avoid the time and expense associated with defending them.