By Stuart Rudner
I saw a graphic on Facebook feed and thought it provided an excellent demonstration of the difference between treating people equally and providing them with equality. I also thought it confirmed how the need for accommodation can address the symptom, or the cause.
In the first image, three people of varying heights are standing on blocks of the same height looking over a fence to watch a sports game, so the smallest person is at a disadvantage as he cannot see the game — but they are being treated equally.
The second image shows the same three people but they are standing on different-sized blocks that make them all the same height, and able to see the game — they are being treated equitably.
The third image shows the fence removed, so all three can easily see the game — the systemic barrier has been removed.
As regular readers will know, the duty to accommodate is an issue that is constantly being addressed by employers and employment counsel. The nature of circumstances that need to be accommodated continues to grow, and sometimes employers have difficulty in accepting the fact that accommodation is required in certain circumstances, such as employees who use medicinal marijuana or have childcare obligations that conflict with their work schedules.
Few people would have any difficulty in accepting that an individual in a wheelchair is entitled to accommodation so she can fully participate in the workforce. While the graphic above deals with people of different heights, it could just as easily involve someone in a wheelchair who would, therefore, be at a lower height. The fence is a barrier to equal access. It may be possible to raise the person in a wheelchair up, but it would be preferable to remove the wall altogether or replace it with one that is transparent, as was done in the photo.
Accommodation of physical challenges is usually easy to grasp. It becomes more difficult when we discuss accommodation of things such as child care, religious observance, etc. The same employer that will readily ensure its workplace is physically accessible may scoff at the notion it must employ someone who is taking marijuana, or allow an employee to adjust his work schedule in order to pick up his child from daycare.
However, the Human Rights Code sets out specific grounds upon which employers cannot discriminate. While they vary very slightly from jurisdiction to jurisdiction, they are similar across the country. In Ontario, the list is as follows:
- ancestry, colour, race
- ethnic origin
- place of origin
- family status
- marital status (including single status)
- gender identity, gender expression
- record of offences
- sex (including pregnancy and breastfeeding)
- sexual orientation.
An individual is entitled to accommodation, to the point of undue hardship, where there is any barrier, physical or otherwise, that would have an adverse impact upon her based upon a protected ground. The steps that prevent an individual in a wheelchair from coming in to the workplace may be no different from the rule that an employee be at work from 9 a.m. to 5 p.m. Monday to Friday. They both have the potential to exclude the individual from the workplace.
In some cases, there may be a bona fide occupational requirement that would justify the barrier. In other cases, the accommodation that would be required may constitute undue hardship due to its cost or other impacts. However, as we have discussed previously (for example, here and here), it is critical that no request for accommodation be dismissed out of hand.
Even though some requests may seem more outlandish, the best way for an employer to incur liability for a failure to accommodate or for the breach of human rights legislation would be to fail to evaluate the need for and options for accommodation.
It is critical that employers not only respond appropriately to requests for accommodation, but document their efforts. If an allegation is made that the employer did not fulfill its obligation to accommodate, or consider accommodation, the onus will fall upon the employer to produce evidence showing it objectively assessed the need for accommodation and, if it was satisfied that the need existed, assessed the options available and then reached a justifiable decision.
It may well be that accommodation was required but the costs would be so great that it would constitute undue hardship, or that accommodation would cause safety risks for other employees. However, it is not enough for an employer to simply dismiss a request as being "too expensive" or “impossible". Detailed analysis must be provided which would show that the requested accommodation would directly lead to costs or other issues that constitute an undue hardship upon the employer.
One thing that is worth mentioning is that employees are not entitled to their preferred form of accommodation. They are entitled to reasonable accommodation, so long as it does not cause undue hardship. Employers are fully entitled to assess the options and choose one that is most reasonable, regardless of the employee's preference. As the graphic above demonstrates, sometimes the solution can be quite simple.