Duty to Accommodate: General Rules

The duty to accommodate finds its origin as rebuttal defence to a prima facie case. If no such case is presented, no duty to accommodate arises. ¹

The Supreme Court determined ² a new unified approach which involved a three step test to determine whether a prima facie discriminatory standard is a ³BFOR

These three requirements are:

1. A rational job related purpose;
2. Which has been effected in good faith, the subjective test;
3. That was required to accomplish a legitimate work-related purpose, the objective component.

It is within this third step that the duty to accommodate arises. To prove that the standard is reasonably necessary, it is required that it be shown that it is “impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer”. This does not mean that the employer must show it is impossible to accommodate. The employer, rather, must show it is not possible without suffering undue hardship. ⁴

Should further accommodation be possible without undue hardship, then the standard will not be seen as a BFOR and the prima facie case of discrimination will stand.

The word “undue” demonstrates that some form of hardship is to be accepted. The factors of hardship were repeated to be an open forum but will include “the financial cost, the relative interchangeability of the workforce and facilities and the prospect of substantial interference with the rights of other employees. ⁵

When considering ways in which an individual’s capabilities may be accommodated, “employers, courts and tribunals should be innovative yet practical when considering how this may best be done in particular circumstances”. Some issues to be addressed will include the following:

• Has the employer investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard?
• If alternative standards were investigated and found to be capable of fulfilling the employer’s purpose, why were they not implemented?
• Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards reflective of group or individual differences and capabilities be established?
• Is there a way to do the job that is less discriminatory while still accomplishing the employer’s legitimate purpose?
• Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?
• Have other parties who are obliged to assist in the search for possible accommodation fulfilled their roles? ⁶

The employer must address the BFOR in both a procedural and substantive manner.

The issue of accommodation was again considered by the Supreme Court. ⁷ This case did not deal with an employment disability issue but the court’s remarks on the issue of procedural accommodation directly pertain to this issue. The decision demonstrates that the duty of accommodation is not limited to the employment relationship.

The case arose from a human rights complaint as a consequence of a rule which denied a driver’s licence to a person afflicted with a certain vision problem. ⁸ Essentially, the submission was that individual assessments should have been implemented as part of the accommodation process and that a blanket standard was unfair.⁹

The case clearly focused on the need to show procedural accommodation, not the substantive issue.

The Supreme Court decided the case based on the procedural aspect. The blanket “one size fits all approach” ¹⁰was not appropriate. The applicant should have been subjected to an individual test to determine his medical ability to drive. ¹¹

The Supreme Court repeated the basic three rules set out above ¹² and added the following tests to determine where a particular job or other requirement may be successfully met: ¹³:

1. It must be shown that it is impossible to accommodate individual employees without imposing undue hardship upon the employer;
2. There are two aspects to accommodation. One is procedural and the second is substantive.

The procedural duty will require the employer to take proper steps to determine what accommodation is needed and to assess what options are available. This will mandate knowledge of the issues and limitations confronting the employee, ¹⁴and taking such steps as modifying duties or hours of work, all to the point of undue hardship.¹⁵

The B.C. Court of Appeal reviewed and set aside the judicial review and restored the decision of the Tribunal decision. This case is known for its damage awards but it also dealt with the procedural and substantive obligations of the accommodation question. The Court noted that there is “no free-standing procedural duty”, yet both and procedural and substantive components of the questioned decision must be examined. The Court cited this passage from Meirorin: ¹⁶

66     Notwithstanding the overlap between the two inquiries, it may often be useful as a practical matter to consider separately, first, the procedure, if any, which was adopted to assess the issue of accommodation and, second, the substantive content of either a more accommodating standard which was offered or alternatively the employer’s reasons for not offering any such standard: see generally Lepofsky, [M. David Lepofsky, “The Duty to Accommodate: A Purposive Approach” (1993), 1 Can. Lab. L.J. 1.]

As to the question of accommodation, the Court of Appeal noted that the test was not to show that accommodation would guarantee success, but rather provide the opportunity to try to achieve this objective:

The appellant submits that the adverse finding on accommodation was premised on the mere possibility that further accommodation may successfully see the respondent through the program. I agree with the respondent that the goal of accommodation in a training program is not guaranteed success, but only the opportunity to try. It was not necessary for the respondent to demonstrate his ability to succeed despite his disabilities: see Boehringer Ingelheim (Canada) Ltd. v. Kerr, 2011 BCCA 266 [ 72 C.H.R.R. D/173] at para. 33.

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1. Baber v York Region School Board; Tang v McMaster
2. The traditional analysis allowed a bona fide occupational requirement in a case of direct discrimination, but no such defence was available to a case of adverse-effect discrimination. Ontario remains as the only jurisdiction to allow a BFOR defence to adverse effect discrimination.
3. Bona fide occupational requirement
4. Coast Mountain Bus v CAW Canada
5. British Columbia (Public Service Employee Relations Commission v BCGSEU, “Meiorin”; some jurisdictions now set out in the statute what are the factors of undue hardship, as set out subsequently.
6. As Sopinka J. noted in Renaud, at pp. 992-96, the task of determining how to accommodate individual differences may also place burdens on the employee and, if there is a collective agreement, a union.
7. the 1999 decision of BC (Superintendent of Motor Vehicles) v BC ( Council of Human Rights), referred to in most cases as “Grismer”.
8. homonymous hemianopia (H.H.)
9. This was prior to Meiorin.
10. These were not the Court’s words.
11. This resulted in a new hearing on the issue. The Federal Court of Appeal revisited the issue of procedural accommodation in Cruden and found that the failure to allow for procedural accommodation was not independently actionable. Canada (Human Rights Commission) v Canada (A-G) “Cruden” This has not been applied uniformly
12. That is the standard was made for a rational purpose, in good faith and was necessary.
13. British Columbia (Public Service Employee Relations Commission v BCGSEU, “Meiorin”; BC (Superintendent of Motor Vehicles) v BC ( Council of Human Rights), “Grismer”.
14. Baber v York District School Board HRTO
15. Divisional Court in ADGA Group Consultants v Lane
16. Kelly v UBC
17. Powell v Ontario
18. Entrop v Imperial Oil