Workshop on Duty to Accommodate Policy

Section 2: The Policy and its Legal Grounds

In this section we will:

• become familiar with the Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service
• better understand the legal grounds for the policy
• define the terms "duty to accommodate," "undue hardship," and "bona fide occupational requirement," and what these mean for us as employers and employees.

Note: Examples of legal precedent will be used only to illustrate the meanings of terms. Each situation is different, and these examples are not to be assumed as legal advice for your specific set of circumstances. Inquiries about a particular case should be directed to human resource or employment equity personnel in your department or agency.

Policy Statement

It is the policy of the Treasury Board and the Public Service Commission to create and maintain an inclusive, barrier-free environment in the federal Public Service to ensure the full participation of persons with disabilities.

 This policy is to be implemented by:

• identifying and removing barriers to employment, career development and promotion of persons with disabilities unless doing so would result in undue hardship;
• designing all employment systems, processes and facilities to be accessible by building accommodation into workplace standards, systems, processes and facilities; and
• accommodating individuals when such barriers cannot be removed. Such accommodation must be made to the point of undue hardship taking into consideration issues of health, safety and cost. Accommodation must also be based on the circumstances of each case and must respect an individual's right to privacy and confidentiality.

I. Legal Grounds

Workplace accommodation is not a courtesy -- it's the law. Three major legal developments have taken place that have had great implications for people with disabilities:

1. the Charter of Rights and Freedoms; 
2. the Canadian Human Rights Act; and 
3. the Employment Equity Act.

1) The Charter of Rights and Freedoms, in essence, states that everyone is equal before the law, and has the right to equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. This is outlined in section 15 of the Charter.

See Dept. of Justice Canada laws.justice.gc.ca/en/index.html

Policy Excerpt:
This policy is consistent with fundamental Canadian legal principles. The Canadian Charter of Rights and Freedoms guarantees certain democratic rights to all persons and prohibits discrimination on the basis of physical or mental disability. In several cases, Canadian courts have emphasized that accommodation is an essential means of ensuring the equal participation of all persons in all sectors of Canadian society.

2) The Canadian Human Rights Act (CHRA) requires federal government departments and federally regulated organizations to provide workplace accommodation to anyone protected by the law unless doing so would result in undue hardship. This is commonly referred to as the "duty to accommodate" and is detailed in sections 2 to 15 of the Act.

Policy Excerpt:
Under the Canadian Human Rights Act, employers must accommodate individuals and groups of individuals to the point of undue hardship considering issues of health, safety and cost.

See CHRC, "Click" Legislation and Policies www.chrc-ccdp.ca/legislation_policies/default-en.asp

3) The Employment Equity Act (EEA) requires employers to achieve a representative workforce by developing and putting into effect an employment equity program that removes barriers for women, members of visible minorities, Aboriginal persons, and people with disabilities. The EEA also requires the accommodation of all four designated groups.

Policy Excerpt:
The Employment Equity Act requires the reasonable accommodation of persons with disabilities and others within the federal workplace. The Act also requires employers to identify and remove barriers to the employment of persons in designated groups.

Under the Employment Equity Act, the Treasury Board and the Public Service Commission share employer responsibilities to the extent of their authority under the Financial Administration Act and the Public Service Employment Act. This policy therefore sets out the requirements for the Treasury Board, the Public Service Commission and their delegates.

See CHRC, "Click" Legislation and Policies www.chrc-ccdp.ca/legislation_policies/default-en.asp

II. Duty to Accommodate

"Duty to accommodate refers to the obligation of an employer, service provider, or union to take appropriate steps to eliminate disadvantage to employees, prospective employees, or clients resulting from a rule, practice or physical barrier that has or may have an adverse impact on persons with disabilities."

Canadian Human Rights Commission

See CHRC, "Click" Legislation and Policies www.chrc-ccdp.ca/legislation_policies/default-en.asp

The duty to accommodate is the single most important factor to positively affect the participation of people with disabilities in the workplace. The meaning of the duty to accommodate up to the point of undue hardship continues to evolve through legal interpretations of tribunals and courts. The law requires that an employer will provide accommodations unless it can demonstrate that the provisions of those accommodations would cause an undue hardship. In the absence of being able to prove undue hardship, the employer or service provider would not be able to establish a defence against a claim of discrimination.

1. Extent of the Duty to Accommodate

   According to the Supreme Court of Canada, barriers to participation for persons with disabilities must be eliminated from policies, rules, standards and practices at the design stage. Employers cannot rely on accommodating individuals after the fact but must build accommodation into their policies or practices, as far as possible, to the point of undue hardship.

   When the need does arise to accommodate an employee, an employer must determine:

   • Can the person perform the job as it exists?
   • If no, can the person perform the job if it is modified by re-bundling duties, re-training, or through some other accommodation?
   • If no, can the person perform another job in its existing or accommodated form?

   For legal precedents, see internet web site: www.workink.com

2. Limits of the Duty to Accommodate

   The duty to accommodate is not limitless. Accommodation always requires a balancing act between the rights of an employee with a disability to equal treatment, and the rights of an employer to operate a productive workplace. The employer is not required to:

   • accommodate where undue hardship would result;
   • create an unproductive position;
   • keep someone who is unable to meet their employment obligations despite accommodations; or
   • hire someone who, after being accommodated, did not meet the qualifications.

   Note: The "nature" or "level" of qualifications and requirements must not be altered by accommodations. Employees, once accommodated, are expected to meet bona fide occupational requirements and standards. Likewise, candidates are not exempted from meeting bona fide occupational qualifications.

3. When It Appears That The Duty To Accommodate Has Not Been Met:

   The onus is on the complainant first to make a prima facie case of discrimination. Complainants must be able to show that they were denied a job or a service, or discriminated in employment or in the provision of a service due to their disability, or on the basis any other ground protected by the Charter of Rights and Freedoms. Once that is done, the onus shifts to the Respondent to establish a justification for the discrimination.