Avoiding allegations of discrimination: An employer’s duty to accommodate

The Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the “Human Rights Code”) expressly recognizes the right of every person in Ontario to equal treatment with respect to services, goods and facilities. In so doing, the Human Rights Code prohibits discrimination based on “race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.” (Section 1, Human Rights Code, R.S.O. 1990, c. H.19.)

Flowing from the Code’s prohibition on discrimination is a duty on employers to accommodate the needs of employees falling under one of the identified grounds of discrimination. This has important implications for employers, who must be mindful not only of the prohibition against discriminating against these employees, but also the extent of their duty to accommodate such employees.

The Legal Framework

Like the Human Rights Code, the Canadian Human Rights Act, R.S.C., 1985, c. H-6 establishes certain protected grounds, which employers must accommodate in order to avoid violating their employees’ human rights. The Supreme Court of Canada articulated the purpose of accommodation in its 2008 decision of Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ):

“…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.” ([2008] 2 SCR 561, at para. 14)

Examples of accommodation which employers may be required to provide include the following:

• Flexible work schedules for employees with disabilities or caregiving responsibilities;
• Job restructuring or assignment to an alternate position;
• Adjustment of dress code requirements to accommodate religious beliefs;
• Physical alterations to workplace and/or workstations to ensure employee accessibility; and
• Allowing employees not to work on religious holidays

Limits of an Employer’s Duty to Accommodate

Employers are not required to accommodate employees at all costs, however, if doing so would cause the employer to suffer undue hardship. The definition of undue hardship may vary depending on the circumstances, but the Supreme Court of Canada has made clear that an employer claiming undue hardship is not required to demonstrate that accommodation would be impossible. (Ibid, at para. 16) Further, if an employer can demonstrate that there are certain requirements so essential to a job that every person employed in that position must perform them (known as bona fide occupational requirements), the insistence that an employee do so does not constitute discrimination. An employer seeking to rely on a bona fide occupational requirement must demonstrate the following:

1. that the employer adopted the requirement or standard for a purpose rationally connected to the performance of the position;
2. that the employer adopted the particular standard in good faith on the grounds that it was necessary; and
3. that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose, in the sense that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship. (British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3, para. 54)

Determining whether a requirement constitutes a bona fide occupational requirement can be difficult for the layperson and an employer seeking to rely on a bona fide occupational requirement may wish to consult with a lawyer before doing so.

What Should an Employer Do if an Employee Requires Accommodation?

If an employer believes that an employee requires accommodation as a result of an illness, disability, or any other grounds, it should promptly take necessary steps to fully understand the employee’s needs. Doing so in writing may help avoid miscommunication, while also documenting the employers’ good faith efforts to understand its employees’ accommodation needs. If the accommodation required is relatively straightforward and not unduly onerous, the employer may wish to simply make the necessary adjustments to accommodate the employee in question. If, however, an employer is uncertain about its ability to accommodate an employee or the limits of its obligation to do so, the employer should contact a lawyer with experience in matters of employment law before making a decision with respect to its handling of the situation.

Chris Hutchison is a partner with Conway Baxter Wilson LLP, a law firm practicing exclusively civil litigation and advocacy. Conway Baxter Wilson LLP also provides its clients with advice on litigation avoidance strategies. Chris has a general litigation practice with an emphasis on employment law, commercial litigation and trade law.