A Practical Approach to

Accommodation
• What is the duty to accommodate?
• Why is the duty to accommodate important?
• When is there a duty to accommodate?
• What is undue hardship?
• When are the factors that make up undue
hardship?
• What are the responsibilities of the parties?
 What is the duty to
accommodate?
• Examples:
• provision of adaptive technologies
• altering physical premises
• altering job duties
• altering work schedules
• provision of part-time work
 Duty to Accommodate
• Very specific to the facts
• depends on needs of group or individual
• depends on particular qualities of the work
environment
• ongoing obligation
Why is the duty to accommodate
important?
• Ensures equality for disadvantaged persons
• allows people to be evaluated in fair manner
• enhances respect for the individual
• fosters climate of tolerance
• fosters a greater public awareness
• protects workers from discriminatory
attitudes
 Policy on accommodation of
persons with disabilities
• Consult the person with disability
• individualization is the essence
• recognize privacy, confidentiality, comfort,
autonomy in a manner which maximizes
integration and promotes full participation
in society
 When is accommodation
required?
• Ontario Human Rights Code
• direct discrimination
• adverse impact discrimination
• section 24
• section 17
• section 11
 Section 24
• Section 24(1) - right under section 5 is not
infringed where the
• (1)(b) discrimination is for reasons of age,
sex, record of offences, or marital status if
there is a reasonable and bona fide
qualification because of nature of
employment
 Section 24
• Section 24(2)
• not reasonable and bona fide qualification
unless person cannot be accommodated
without undue hardship
 Section 17
• Section 17(1)
• Right of a person under the Act
• person is incapable of performing or
fulfulling the essential duties or
requirements
 Section 17
• Section 17(2)
• person shall not be incapable unless needs
of the person cannot be accommodated
without undue hardship
 Section 11
• Adverse effect discrimination
• section 11(1)
• right of a person under Part 1 is infringed
where a requirement, qualification or factor
exists that is not discrimination on a
prohibited ground but results in the
exclusion of a group of persons who are
identified by a prohibited ground
 Section 11
• Section 11(1) exceptions:
• section 11(1)(a) where the requirement is
reasonable and bona fide in the
circumstances
• section 11(2) the requirement is reasonable
and bona fide only if the needs of the group
cannot be accommodated without undue
hardship
 What is undue hardship?

• Undue hardship vs. reasonable

accommodation
• Some degree of hardship acceptable
What are the factors that make up
undue hardship?
• Cost
• Outside sources of funding
• Health or safety risk
 Factors cont.

• Disruption of a collective agreement

• Problems of morale of other employees
• Interchangeability of work force and
facilities
 Cost
• Undue hardship will be shown to exist if the
financial costs that are demonstrably
attributable to the accommodation of the
needs of the individual or group would alter
the essential nature or would substantially
affect the viability of the organization
responsible for accommodation.
 Types of Costs

• Capital costs
• Operating costs
• Additional staff costs
• Other quantifiable and demonstrably
related costs
 Costs considerations
• Restructuring existing resources (rather than
incurring costs)
• Availability of grants, subsidies or loans
• Ability to distribute costs throughout
operation
• Ability to amortize or depreciate capital
costs
 Considerations cont.
• Tax deductions
• Improved productivity or efficiency
• Increase in resale
• Increase in clientale
 Health and Safety
• Undue hardship will be shown to exist
where a person responsible for
accommodation has established a bona fide
health or safety requirement, has attempted
to minimize this risk, but the degree of risk
remaining outweighs the benefits of
enhancing equality for the person seeking
protection of the Code
 Seriousness of Risk
• Nature of risk
• Severity of risk
• Probability of risk
• Scope of risk
 Health and Safety factors
• Who will be affected
• Willingness of person to accept the risk
• Other types of risks within the enterprise
• Types of risks tolerated within society as a
whole
 Disruption of Collective
Agreement
• “While the provisions of a collective
agreement cannot absolve the parties from
the duty to accommodate, the effect of the
agreement is relevant in assessing the
degree of hardship occasioned by
interference with the terms thereof.
Substantial departure from the the normal
operation of the the conditions and terms of
employment in the collective agreement may
constitute undue interference in the
 Employee Morale
• Objection of other employees must be based
on “well-grounded concerns.”
• Substantial, not trivial
• Minor inconveniences the price to be paid.
 What are the Responsibility of
the Parties?
• Must make sincere (bona fide) efforts to
accommodate
• Must make sufficient efforts to consider the
request, and investigate means of
accommodation
• Must offer valid, substantial reasons when
unable to accommodate
 Union Liability

• Renaud case found CUPE,local 523 liable

for the failure to accommodate a school
janitor who was a Seventh Day Adventist
 Union Liability factors
• Participation in the formulation of the work
rule
• Impedes the reasonable efforts of an
employer to accommodate