A Practical Approach to Accommodation

1. 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?

2. 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

3. 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

4. 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

5. 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

6. When is accommodation required? • Ontario Human Rights Code • direct discrimination • adverse impact discrimination • section 24 • section 17 • section 11

7. 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

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

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

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

11. 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

12. 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

13. What is undue hardship? • Undue hardship vs. reasonable accommodation • Some degree of hardship acceptable

14. What are the factors that make up undue hardship? • Cost • Outside sources of funding • Health or safety risk

15. Factors cont. • Disruption of a collective agreement • Problems of morale of other employees • Interchangeability of work force and facilities

16. 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.

17. Types of Costs • Capital costs • Operating costs • Additional staff costs • Other quantifiable and demonstrably related costs

18. 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

19. Considerations cont. • Tax deductions • Improved productivity or efficiency • Increase in resale • Increase in clientale

20. 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

21. Seriousness of Risk • Nature of risk • Severity of risk • Probability of risk • Scope of risk

22. 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

23. 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 employer’s business.”

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

25. 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

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

27. Union Liability factors • Participation in the formulation of the work rule • Impedes the reasonable efforts of an employer to accommodate