Accommodating Workplace Diversity
This quarter’s edition of Workplace Issues focuses on the Duty to Accommodate, including its history, some examples, and the obligations of both Bargaining Agents and the Employer.
The Definition of the Duty to Accommodate
According to the Canadian Human Rights Commission, the duty to accommodate is:
“the obligation to meaningfully incorporate diversity into the workplace. The duty to accommodate involves eliminating or changing rules, policies, practices and behaviours that discriminate against persons based on a group characteristic, such as race, national or ethnic origin, colour, religion, age, sex (including pregnancy), sexual orientation, marital status, family status and disability.”
In the past, employees usually came forward with an accommodation request. Today, the Employer is legally required to implement accommodation into their rules and practices up to the point of undue hardship. This obligation comes as a result of two leading Supreme Court of Canada cases on the duty to accommodate: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union, [1999] 3 S.C.R. 3 (also known as the Meiorin case) and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (also known as the Grismer case). In the Meiorin case, the Supreme Court of Canada warns Employers who do not implement accommodation measures may face liability under Canadian human rights law.
Let’s look at a few examples of cases in which the Employer may have a duty to accommodate:
Case #1:
A single working mother needs restructured, flexible working hours in order to care for her children.
Case #2
Special prayer rooms need to be created in order to accommodate the religious practices of a minority group.
Case #3
Voice recognition software needs to be installed along with specially designed computer hardware and office equipment to accommodate an employee who has lost the mobility in their arms.
Undue Hardship
As noted above, employers are required to accommodate employees up to the point of undue hardship. Pursuant to s. 15(2) of the Canadian Human Rights Act,
“it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.”
This means that employers cannot deny accommodation unless they are obligated to do so as a result of a Bona Fide Occupational Requirement. For example, employees may be denied accommodation if such accommodation would risk the health and safety of the employer or the employee, trigger an excessive disruption or interference in the workplace or, depending on the size of the employer, the financial costs of accommodation make it impossible.
Bargaining agents’ obligation
Bargaining agents also have an important role to play in instances where an employer is making reasonable efforts to accommodate an employee. For example, ACFO has an obligation to facilitate the accommodation process and to not interfere with the employer’s efforts to accommodate the employee. If a bargaining agent interferes and accommodation is not made possible, the bargaining agent may be liable.
Employer’s obligations
Here are some examples of employer obligations:
- Design workplace requirements and standards so that there is no discrimination;
- Be proactive
- Solicit information concerning the employee’s disability-related employment needs;
- Be creative and flexible;
- Respect the Collective Agreement in terms of accommodation;
- Maintain confidentiality. The employer must respect the privacy of the employee;
- Demonstrate a willingness and commitment to accommodate; and
- Work with the bargaining agent and the employees to provide education on the duty to accommodate.
If you have any questions about the duty to accommodate, please call a Labour Relations Advisor toll-free at 1-877-728-0695 for assistance and guidance.
