A Practical Approach to Accommodation

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A Practical Approach to Accommodation

• What is the duty to accommodate?
• Why is the duty to accommodate important?
• When is there a duty to accommodate?
• What is undue hardship?
• When are the factors that make up undue hardship?
• What are the responsibilities of the parties?

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What is the duty to accommodate?

• Examples
• provision of adaptive technologies
• altering physical premises
• altering job duties
• altering work schedules
• provision of part-time work

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Duty to Accommodate

• Very specific to the facts
• depends on needs of group or individual
• depends on particular qualities of the work
  environment
• ongoing obligation

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Why is the duty to accommodate important?

• Ensures equality for disadvantaged persons
• allows people to be evaluated in fair manner
• enhances respect for the individual
• fosters climate of tolerance
• fosters a greater public awareness
• protects workers from discriminatory attitudes

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Policy on accommodation of persons with
disabilities

• Consult the person with disability
• individualization is the essence
• recognize privacy, confidentiality, comfort,
  autonomy in a manner which maximizes integration
  and promotes full participation in society

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When is accommodation required?

• Ontario Human Rights Code
• direct discrimination
• adverse impact discrimination
• section 24
• section 17
• section 11

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Section 24

• Section 24(1) - right under section 5 is not
  infringed where the
• (1)(b) discrimination is for reasons of age, sex,
  record of offences, or marital status if there is
  a reasonable and bona fide qualification because
  of nature of employment

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Section 24

• Section 24(2)
• not reasonable and bona fide qualification unless
  person cannot be accommodated without undue
  hardship

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Section 17

• Section 17(1)
• Right of a person under the Act
• person is incapable of performing or fulfulling
  the essential duties or requirements

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Section 17

• Section 17(2)
• person shall not be incapable unless needs of the
  person cannot be accommodated without undue
  hardship

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Section 11

• Adverse effect discrimination
• section 11(1)
• right of a person under Part 1 is infringed where
  a requirement, qualification or factor exists
  that is not discrimination on a prohibited ground
  but results in the exclusion of a group of
  persons who are identified by a prohibited ground

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Section 11

• Section 11(1) exceptions
• section 11(1)(a) where the requirement is
  reasonable and bona fide in the circumstances
• section 11(2) the requirement is reasonable and
  bona fide only if the needs of the group cannot
  be accommodated without undue hardship

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What is undue hardship?

• Undue hardship vs. reasonable accommodation
• Some degree of hardship acceptable

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What are the factors that make up undue hardship?

• Cost
• Outside sources of funding
• Health or safety risk

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Factors cont.

• Disruption of a collective agreement
• Problems of morale of other employees
• Interchangeability of work force and facilities

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Cost

• Undue hardship will be shown to exist if the
  financial costs that are demonstrably
  attributable to the accommodation of the needs of
  the individual or group would alter the essential
  nature or would substantially affect the
  viability of the organization responsible for
  accommodation.

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Types of Costs

• Capital costs
• Operating costs
• Additional staff costs
• Other quantifiable and demonstrably related costs

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Costs considerations

• Restructuring existing resources (rather than
  incurring costs)
• Availability of grants, subsidies or loans
• Ability to distribute costs throughout operation
• Ability to amortize or depreciate capital costs

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Considerations cont.

• Tax deductions
• Improved productivity or efficiency
• Increase in resale
• Increase in clientale

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Health and Safety

• Undue hardship will be shown to exist where a
  person responsible for accommodation has
  established a bona fide health or safety
  requirement, has attempted to minimize this risk,
  but the degree of risk remaining outweighs the
  benefits of enhancing equality for the person
  seeking protection of the Code

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Seriousness of Risk

• Nature of risk
• Severity of risk
• Probability of risk
• Scope of risk

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Health and Safety factors

• Who will be affected
• Willingness of person to accept the risk
• Other types of risks within the enterprise
• Types of risks tolerated within society as a whole

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Disruption of Collective Agreement

• While the provisions of a collective agreement
  cannot absolve the parties from the duty to
  accommodate, the effect of the agreement is
  relevant in assessing the degree of hardship
  occasioned by interference with the terms
  thereof. Substantial departure from the the
  normal operation of the the conditions and terms
  of employment in the collective agreement may
  constitute undue interference in the operation of
  the employers business.

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Employee Morale

• Objection of other employees must be based on
  well-grounded concerns.
• Substantial, not trivial
• Minor inconveniences the price to be paid.

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What are the Responsibility of the Parties?

• Must make sincere (bona fide) efforts to
  accommodate
• Must make sufficient efforts to consider the
  request, and investigate means of accommodation
• Must offer valid, substantial reasons when unable
  to accommodate

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Union Liability

• Renaud case found CUPE,local 523 liable for the
  failure to accommodate a school janitor who was a
  Seventh Day Adventist

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Union Liability factors

• Participation in the formulation of the work
  rule
• Impedes the reasonable efforts of an employer to
  accommodate