Accommodation
The Alberta Human Rights, Citizenship and Multiculturalism Act recognizes that all persons are equal in dignity, rights and responsibilities, regardless of race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income or family status. In addition, the Government of Alberta agreed to “read in” sexual orientation as a protected ground, effective April 2, 1998.
Accommodation means making changes to certain rules, standards, policies, workplace cultures and physical environments to ensure that they don’t have a negative effect on a person because of the person’s mental or physical disability, religion, gender or any other protected ground.
The goal of accommodation is to enable equitable participation in any of the areas protected by the Act:
* employment practices
* employment applications and advertisements
* residential or commercial tenancy
* goods, services, accommodation or facilities customarily available to the public (for example, restaurants, stores, hotels or provincial government services)
* statements, publications, notices, signs, symbols, emblems or other representations that are published, issued or displayed before the public
* membership in trade unions, employers’ organizations or occupational associations
* equal pay (When employees of any sex—male, female or transgender—do the same or substantially similar work, they must be paid at the same rate.)
Accommodation is a way to balance the diverse needs of individuals, groups, organizations and businesses in our society. It may cause a degree of inconvenience, disruption and expense. Accommodation is not a nicety or a courtesy—it is required by law.
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Who has a duty to accommodate?
The duty to accommodate applies to employers, landlords, business owners, public service providers, educational institutions, professional associations, trade unions and others. For ease of reference, this bulletin refers to those who have a duty to accommodate as employers and service providers.
To what extent is accommodation required?
The Supreme Court of Canada has ruled that employers, unions and service providers have a legal duty to take reasonable steps to accommodate individual needs to the point of undue hardship. To substantiate a claim of undue hardship, an employer or service provider must show that they would experience more than a minor inconvenience. In many cases, accommodation measures are simple and affordable and do not create undue hardship.
What is undue hardship?
Undue hardship occurs if accommodation would create onerous conditions for an employer or service provider, for example, intolerable financial costs or serious disruption to business. To determine if undue hardship would occur, the employer or service provider should review factors such as:
* Financial costs—Financial costs must be substantial in order to be found to cause undue hardship. They must be so significant that they would substantially affect productivity or efficiency of the employer or service provider responsible for the accommodation. Accommodation measures could result in lost revenue, which should be taken into account when assessing undue hardship. However, if lost revenue due to accommodation would be offset by increased productivity, tax exemptions, grants, subsidies or other gains, then undue hardship may not be a factor. Financial costs do not include the expense of complying with other legislation or regulations, such as building codes (for example, providing wheelchair accessible washrooms or separate washroom facilities for men and women).
* Size and resources of the employer or service provider—The ability of the employer or service provider to absorb the cost of modifying premises or equipment (particularly if firm plans exist to move to more accessible premises) and the ability to amortize such costs. The larger the operation, the more likely it is that it can afford to support a wider range of accommodation for a person seeking accommodation.
* Disruption of operations—The extent to which the inconvenience would prevent the employer or service provider from carrying out essential business. For example, modifying a workspace in a way that substantially interferes with workflow may be considered too disruptive.
* Morale problems of other employees brought about by the accommodation—These could be due to reasons such as the negative impact of increased workload and working too much overtime, including sleep difficulties or other health issues.
* Substantial interference with the rights of other individuals or groups—A proposed accommodation should not interfere significantly with the rights of others or discriminate against them. The objections of others must be based on well-grounded concerns that their rights will be affected. For example, a substantial departure from the terms of a collective agreement could be a serious concern.
* Interchangeability of work force and facilities—Whether an employer or service provider could relocate employees to other positions on a temporary or permanent basis. This may be easier for a larger company.
* Health and safety concerns—Where safety is a concern, consider the level of risk and who bears that risk. For example, consider if the accommodation would violate health and safety regulations.
In employment situations, the following expenses are not normally considered to constitute undue hardship:
* overtime or leave costs that the employer or service provider can tolerably bear
* expenses incurred to respond to a grievance or minor disruption to a collective agreement
While certain accommodation measures may create an undue hardship for one employer or service provider, the same measures may not pose an undue hardship for a different employer or service provider. For example, the manager of a business with 3 employees may not be able to accommodate a request for revised work hours as easily as a manager who has 25 employees.
Keep in mind that measures that do not cause an employer or service provider undue hardship now, may do so in the future if its circumstances change. For example, a company that has recently laid off 50% of their staff due to an economic downturn may no longer be able to accommodate a new request for a change in job duties from an employee with a disability, although the company may have accommodated such requests in the past.
Accommodating persons with disabilities
Many complaints about accommodation relate to the grounds of physical and mental disability.
The Act says that physical disability means “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness.” Some disabilities that have been established as protected under human rights law are: epilepsy/seizures, heart attack/heart condition, cancer, severe seasonal allergies, shoulder or back injury, asthma, Crohn’s disease, hypertension, hysterectomy, spinal malformation, visual acuity, colour blindness, loss of body parts such as fingers, speech impediments, arthritis, muscular atrophy, cerebral palsy, alcoholism, and drug dependence.
Common conditions such as colds and flu that don’t last long and have no long-term effects are not normally considered to be physical disabilities.
Mental disabilities are defined by the Act as “any mental disorder, developmental disorder or learning disorder, regardless of the cause or duration of the disorder.” Some examples of mental disabilities include: dyslexia, depression, schizophrenia, obsessive compulsive disorder and panic attacks.
It is not possible to provide a complete list of conditions normally considered to be disabling under human rights law. The disabilities listed above are examples only.
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Duty to accommodate in employment
The duty to accommodate in employment refers to an employer’s obligation to take appropriate steps to eliminate discrimination against employees and potential employees. Discrimination may result from a rule, practice or barrier that has a negative effect on a person with a need for accommodation based on the protected grounds. An employer’s duty to accommodate employees or potential employees is far reaching. It can begin when a job is first advertised and finish when the employee requiring accommodation leaves the job.
Accommodation in employment most often involves the protected grounds of physical or mental disability, religious beliefs, gender (including pregnancy), family status, and marital status.
Some things to consider when accommodating employees include:
* purchasing or modifying tools, equipment or aids, as necessary
* altering the premises to make them accessible
* altering aspects of the job, such as job duties
* offering flexible work schedules
* offering rehabilitation programs
* allowing time off for recuperation
* transferring employees to different jobs
* hiring an assistant
* using temporary employees
* adjusting policies (for example, relaxing the requirement to wear a uniform)
**Bona fide occupational requirement
The law recognizes that, in certain circumstances, a limitation on individual rights may be reasonable and justifiable. Discrimination or exclusion may be allowed if an employer can show that a discriminatory standard, policy or rule is a necessary requirement of a job. For example, in order to perform their jobs safely, persons employed as drivers require acceptable vision and an appropriate driver’s licence. A legally blind person would be legitimately excluded from a position as a driver since it is a bona fide occupational requirement to be able to see and to obtain an operator’s licence.
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An employer can claim a bona fide occupational requirement as a defence if a complaint of discrimination is filed against them. The onus is on the employer to show that it would be impossible to accommodate the employee without undue hardship.
The Meiorin test helps employers determine if particular occupational requirements are reasonable and justifiable
In 1999, the Supreme Court of Canada released a decision that provides direction to employers as to whether a particular occupational requirement is reasonable and justifiable.[1] The Government of British Columbia had brought in minimum fitness standards that applied to forest firefighters. A female firefighter did not meet the requirements of a running test designed to measure aerobic fitness. Consequently, even though she had worked as a forest firefighter for three years, her employment was terminated. In grieving her dismissal, the firefighter argued that the aerobic standard discriminated against women because women generally have lower aerobic capacity than men.
In its decision, the Supreme Court outlined a new three-part test. The Meiorin test, named after the female firefighter, sets out an analysis for determining if an occupational requirement is justified. Once the complainant has shown the standard or requirement is prima facie (at first view) discriminatory, the employer must prove that, on a balance of probabilities, the standard:
* was adopted for a purpose that is rationally connected to job performance
* was adopted in an honest and good faith belief that the standard is necessary for the fulfillment of that legitimate purpose
* is reasonably necessary to accomplish that legitimate purpose—This requires the employer to demonstrate that it is impossible to accommodate the employee without the employer suffering undue hardship.
The test requires employers to accommodate or consider the capabilities of different members of society before adopting a bona fide occupational requirement. For example, women typically have lower aerobic capacity than men. Before setting a fitness standard so high that the vast majority of women would not be able to achieve it, an employer must be certain that such a high level of fitness is necessary to do the job. This does not mean that the employer cannot set standards, but it does mean that the standards should reflect the requirements of the job.
Evaluation of a bona fide occupational requirement
To determine whether a policy or standard is discriminatory, the Commission will first ask:
* Has the person making the complaint been treated in a differential manner?
* Is the differential treatment based on a prohibited ground?
If the answer to both questions is yes, then a prima facie case of discrimination is established. It is the responsibility of the employer to provide evidence that the standard or policy is a bona fide occupational requirement.
In order for a defence of an occupational requirement to be accepted as valid, the employer must prove that the requirement has all three characteristics described in the Meiorin test. The Commission will normally consider the following criteria for each characteristic.
* Rational connection to the performance of the job
* What is the purpose of the policy or standard—safety, efficiency, other? Evidence may include public statements or documents and internal documents that provide information about the work.
* What are the objective requirements of the job? Evidence may involve identifying the jobs to which the policy or standard applies and identifying the duties involved in these jobs.
* Is there a rational connection between the general purpose of the policy or standard and the objective requirements of the job?
* Honest and good faith belief that the standard is necessary
* What are the circumstances surrounding the adoption of the policy or standard?
* When was the policy or standard created, by whom, and why?
* What other considerations were included in the development of the policy or standard?
* Reasonable necessity
* Was the standard or policy based on assumptions about a particular group?
* Is there evidence that the standard or policy treats a particular group more harshly than another without apparent justification?
* Were alternate approaches considered before the standard or policy was adopted?
* Is there any evidence the policy or standard was designed to minimize the burden on those required to comply?
* Is there accommodation to the point of undue hardship?
* Is it necessary for all employees to meet the standard or comply with the policy for the employer to accomplish its legitimate purpose?
* Is there any evidence that the legitimate purpose could be accomplished through a less discriminatory approach?
An employer who makes a successful defence based on the Meiorin test in one instance may not necessarily be able to rely on the defence in similar future situations.
