The evolution of accommodation

Since its acceptance into Canadian human rights law in the mid-1980s, the duty to accommodate has been evolving and expanding.

The duty to accommodate arises where discrimination is found to exist in a workplace policy or rule. Initially, human rights law made a distinction between direct and indirect discrimination.

A workplace rule or policy which resulted in direct discrimination was either struck down by an adjudicator, or in some cases, permitted as a bona fide occupational requirement. Indirect discrimination was the result of a policy or rule that appeared neutral (such as the requirement that an employee wear a hard hat) but which had an exclusionary effect on an employee or group of employees (such as an employee who was required to wear a turban as a tenet of his religious faith). In cases where indirect discrimination was found to exist, the focus was not on the employer’s rules or policies, but rather on individual accommodation.

However, since the Meiorin decision by the Supreme Court of Canada (see box), these two silos of the duty to accommodate have merged into a unified approach to reviewing discriminatory rules and practices. The result is greater clarity in the law, as the Supreme Court has essentially ruled there is no need to distinguish between direct and indirect discrimination.

For employers, the Meiorin case also had the effect of raising awareness about what is considered a bona fide job requirement.

In general, the duty to accommodate has both a procedural and a substantive aspect. Employers are first obligated to consider methods by which such characteristics as an employee’s disability, religion or sex (which includes pregnancy) may be accommodated within the workplace. Failure to thoroughly consider the available options exposes an employer to liability.

After determining what aspect of the job is posing problems for the employee and the extent of the difficulties, employers should assess whether the employee can do her original job, with modifications. Then, if the employee still cannot perform her duties, the employer should also look to other positions, in their current or modified form.

Though the employer need not destroy the essential character of an existing job, it will be required to consider bundling tasks that are within the employee’s capabilities in order to meet its duty to accommodate. In a recent case, Essex Police Services Board and Essex Police Association, it was ruled the employer must consider the possibility of “cobbling together” such a position only if there is sufficient work to justify this measure.

At this early stage, employee participation is crucial. In the unionized context, the employer may need the assistance of the union in identifying options, as the union may also shoulder some of the duty to accommodate.

Once accommodation options are identified, the employer must implement changes that will enable the employee to perform the essential duties of the job. It may be as simple as altering schedules to accommodate religious observances or making minor modifications to job content. However, there are recent decisions of labour arbitrators and boards of inquiry in which greater duties have been imposed on employers, such as placing an employee in an entirely different position (at least temporarily), cobbling together the duties of a number of jobs the employee can perform, permitting absences for rehabilitation and treatment or training the employee to perform some other position within her abilities.

Employers have been required to reinstate a terminated employee when it was learned, after termination, the employee’s performance or attendance problems were disability-related.

In a unionized workplace, a seniority system may not be a legitimate obstacle to accommodation. In some circumstances employers, unions and other employees have had to accept the disruption of an accommodated employee carrying at least some seniority into the new position.

For better or worse, the duty to accommodate continues to evolve, and with its evolution the relationship between the parties to the employment relationship also change. Responding to these changed circumstances requires considerable sensitivity, diligence and attention to individual needs.

The precedent-setting Meiorin case

The duty to accommodate expanded with the Supreme Court of Canada’s 1999 decision in the Meiorin case.

The court ruled physical tests for British Columbia forest firefighters were not bona fide occupational requirements and therefore discriminated against female firefighter Tawney Meiorin. Meiorin lost her job after taking 49.4 seconds too long to complete a 2.5 kilometre run; the court ruled she should be reinstated and compensated for lost wages and benefits.

For more information see British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3. To access Canadian HR Reporter’s archives on the Meiorin case, click on the "Related Articles" link below.

Ron LeClair is an associate in the London, Ont. office of Filion Wakely Thorup Angeletti LLP. For more information contact (519) 433-7270, [email protected] or [email protected].

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