Under the Ontario Human Rights Code, every person has a right to equal treatment with respect to employment without discrimination because of disability. Employers must accommodate the needs of employees with disabilities.
This article provides a brief overview of this duty to accommodate. It is a remarkably complex and onerous obligation for employers, so it is essential to seek the guidance of an experienced employment lawyer skilled at identifying creative, cost-effective solutions that benefit all parties.
What is the duty to accommodate?
Under section 5 of the Code, every person has a right to equal treatment concerning employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, a record of offences, marital status, family status or disability.
Regarding disability, section 17 provides that this right is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements because of disability. However, it also states that a person is not incapable unless the person’s needs cannot be accommodated without undue hardship on the employer, considering the cost, outside sources of funding, if any, and health and safety requirements.
What does reasonable accommodation involve?
The employer needs to provide an employee with the necessary adjustments to their work environment to perform their job effectively. This generally involves adopting a measure that achieves its business goals without having a discriminatory impact on an employee.
Typically, an employee will notify the employer of the issue impacting their performance at work and/or request a specific accommodation. The employer must investigate the employee’s proposal comprehensively and promptly, considering the employee’s specific needs. This is likely to involve seeking specific information about the employee’s condition.
The employer must also investigate the feasibility of alternative measures that do not have a discriminatory impact, not restricting itself to examining the particular accommodation proposed by the employee. This is because the employer is likely to better understand its overall operations and could be in a better position to identify reasonable accommodations.
The type of adjustment required obviously will depend on the employee’s needs and the employer’s particular business. Relevant accommodations will need to be considered on a case-by-case basis. Accommodations that may be reasonable include:
- adjustments to an employee’s schedule to allow for attendance at medical appointments;
- providing equipment to enable the employee to perform their job effectively; and
- changing the employee’s duties to avoid tasks that they are unable to do.
What does undue hardship mean?
The duty to accommodate stops at the point of undue hardship. This means that the employer is not required to take measures that would cause undue hardship to the employer or other employees.
What qualifies as undue hardship will vary from case to case, depending on the particular circumstances. However, the simple business inconvenience will not suffice.
A range of factors could be relevant in determining whether a particular accommodation would cause undue hardship, including:
- financial cost, including the cost relative to the size of the operation;
- personnel specialization, in the sense that it may be more difficult to substitute for a highly specialized claimant (who requests an accommodation like time off);
- purchases or modifications to equipment and buildings; and
- the general economic conditions facing the employer.
Once the employee establishes a case of discrimination, the onus then shifts to the employer to establish that it had accommodated the employee to the point of undue hardship. A court has said that:
Undue hardship cannot be established by relying on impressionistic or anecdotal evidence, or after-the-fact justifications. Anticipated hardships caused by proposed accommodations should not be sustained if based only on speculative or unsubstantiated concerns that certain adverse consequences “might” or “could” result if the claimant is accommodated.
As a result, the employer needs to provide evidence about the costs and/or negative consequences if a proposed accommodation is adopted. In order to prove undue hardship, simply asserting that the cost is too high or risks too great will not be sufficient. If cost is the reason for undue hardship, they need to be quantifiable and shown to be related to the accommodation.
What does the employee need to do to facilitate accommodation?
Accommodation has been described as a “joint process”, which requires the employee to cooperate with the employer in the accommodation process by providing the employer with the information relevant to meeting their needs. The employee should work with the employer to identify possible solutions.
Where an employer has initiated a reasonable proposal and would, if implemented, fulfill the duty to accommodate, the employee also needs to facilitate the implementation of the proposal. The employee cannot thwart the venture by failing to take reasonable steps to implement the solution.
What are the consequences of failing to comply with the employer’s duty to accommodate?
The employee may seek a remedy under the Code, which can include the payment of monetary compensation for loss arising out of the infringement of a right and compensation for injury to dignity, feelings, and self-respect. Courts can award these human rights damages in the context of dismissal actions.
Contact Haynes Law Firm in Toronto for Advice on Discrimination and the Duty to Accommodate
Haynes Law Firm helps employers and employees throughout Ontario achieve practical solutions to legal issues and conflict management in employment law and civil litigation. We help employees who have experienced discrimination in the workplace ensure employers are held liable. We also work with employers to identify and implement accommodations for employees and mitigate legal and financial exposure. Contact us online or call us at 416.593.2731.