Merely saying 'It's too expensive' or 'We can't do that' will not be sufficient
The duty to accommodate can be complicated and may seem onerous, but it is critical that employers understand their obligations under the applicable human rights legislation, and in particular their duty to accommodate employees.
Failure to meet the substantive and procedural elements of the duty to accommodate can lead to liability; conversely, a proper understanding of the duty can help you reduce your costs.
Each province in Canada has its own human rights legislation which, among other things, prohibits employers from discriminating against employees based on certain enumerated grounds. The provincial statutes are very similar to each other and contain comparable protections for employees.
Ontario’s Human Rights Code
Ontario’s Human Rights Code provides that every person has a right to equal treatment with respect to employment without discrimination based on the following protected grounds: race; ancestry, place of origin; colour; ethnic origin; citizenship; creed; sex; sexual orientation; gender identity; gender expression; age; record of offences; marital status; family status; disability.
The code also states that a person’s rights are infringed where a requirement, qualification or factor exists that is not on its face discriminatory, but that results in the exclusion, restriction or preference of a group based on a protected ground. This means that employees are protected not only from direct discrimination, but also from rules and policies that indirectly cause them to be discriminated against on the basis of one of the protected grounds.
However, if the requirement, qualification or factor is reasonable and bona fide in the circumstances, and the employee cannot be accommodated without undue hardship towards the company, then there is no violation of the Human Rights Code. That means that employers must take reasonable steps to accommodate, but are not required to take steps that would cause undue interference in the operation of their business.
It should be noted that the above duties only apply to discrimination based on the grounds enumerated in section 5(1) of the Human Rights Code, as referred to above. Discrimination based on, for example, a person’s preference that is not grounded in their creed or deeply held religious belief, will not be contrary to the Human Rights Code and will not engage a duty to accommodate.
As we sometimes joke, you can discriminate based on the colour of an applicant’s shirt, but not the colour of their skin. This has been particularly relevant in the discussion of vaccination: it is not a breach of someone’s human rights to discriminate against them if they choose not to be vaccinated, but it would be if their decision is legitimately based on a ground protected by human rights laws, such as religion.
What is undue hardship?
The duty to accommodate is limited, in that it cannot require that the employer sustain undue hardship. That is a somewhat subjective concept which will be assessed on a case-by-case basis. Undue hardship can relate to, for example, costs, impact on business efficiency, or safety concerns. How much hardship is undue will depend on the resources of the organization; for example, a multi-billion-dollar corporation will be expected to incur more costs in the course of accommodation than a small family-run restaurant.
An early example of the duty to accommodate is the Supreme Court of Canada’s 1985 decision of Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., in which the court considered the case of a business that required its employees to work on Saturdays, contrary to one employee’s deeply held religious beliefs. Although the policy applied equally to all employees, its effect was discriminatory against the employee in question on the basis of creed.
In the absence of any evidence demonstrating that the requested accommodation (allowing her to not work on Saturdays but keeping all other terms of her employment the same) would have caused the employer undue hardship, the court ruled in favour of the employee and ordered the employer to pay damages.
In the 2008 Hydro-Quebec decision, the Supreme Court of Canada had the following to say about the duty to accommodate:
“The goal of accommodation is to ensure that an employee who is able to work can do so. In practice, this means that the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work. The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship.
However, the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment.”
Read more: Top court sets limit on duty to accommodate
Employer’s procedural and substantive duties
Employers have both a procedural duty to accommodate and a substantive duty to accommodate.
The procedural duty involves obtaining all relevant information about the employee’s request for accommodation. In the context of an accommodation request based on disability, this could include information about the employee's current medical condition, prognosis for recovery, ability to perform job duties and capabilities for alternate work. Employers must make efforts to consider all steps that could be taken to accommodate the employee, and whether those steps would result in undue hardship.
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The substantive duty to accommodate requires the employer to consider the need for accommodation and the options available, and either provide accommodation or show that accommodation was not possible without undue hardship. Merely saying “It’s too expensive” or “We can’t do that” will not be sufficient; there must be evidence of a genuine effort to assess the possibility of accommodating the employee.
We strongly recommend that employers institute a formal policy and procedure to handle accommodation requests, to ensure that the company fulfills both its procedural duty and its substantive duty.