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In the workforce, employers and employees are immersed into an environment that forces collaboration with individuals of differing ability, identity, status, race, age, and many other characteristics. These factors work together to make the workforce so intrinsically complex, interpersonally, and professionally. These varying complexities put a high onus on employers to accommodate these differences if they are a protected ground in our Human Rights Legislation.

We at Sultan Lawyers dive into prohibited grounds of discrimination, undue hardship, and the duty to accommodate in the employment context. 

THE DUTY TO ACCOMMODATE: HOW DOES IT WORK?

The duty to accommodate refers to a common law principle which obliges employers to make every reasonable effort to accommodate an employee to the point of undue hardship. Primarily, it is a tool that employees can utilize when an accommodation related complaint is rooted in a prohibited ground protected under the Code. Undue hardship is the recognized defense that employers typically raise to justify a decision not to accommodate an employee. 

WHEN IS THE DUTY TO ACCOMMODATE TRIGGERED?

Triggering the duty to accommodate is fact-specific and context-specific process. In short, the process is usually triggered when an employee expressly requests an accommodation. This triggers a procedural duty to accommodate for the employer. This is when the employer would need to work to gather all the relevant information about the employee’s request for accommodation in the workplace. The employer is then required to use this information to seriously consider whether the employee could be accommodated, short of undue hardship.

From here, an employer must come alive to a substantive duty to accommodate. This is where the employer is required to use the information, they gathered about their employee requesting accommodation, and use it to implement reasonable accommodations. Again, this process is only required up until the point of undue hardship for the employer.

An example of an obligation to accommodate family status is illustrated below in the case of Devaney v. ZRV Holdings Limited, 2012 HRTO 1590:

The case of Devaney v. ZRV Holdings Limited heard at the Human Rights Tribunal of Ontario, is an example whereby an employer failed their duty to accommodate, and further failed to satisfy that the accommodation in question would provide them undue hardship. The employee had requested to work primarily from home because of his care responsibilities for his elderly mother but had been refused. The tribunal ruled that the employer failed to demonstrate that it would suffer undue hardship by permitting the employee to work from home.  In this case, the Ontario Human Rights Tribunal ruled that an employer’s insistence that an architect work regular 8:30-5:30 shifts in the office was indirectly discriminatory based on family status.

THE CONNECTION TO UNDUE HARDSHIP 

Undue hardship is the level of effort an employer must exert to reach all reasonable measures of accommodation. After these have been attempted and exhausted the employer is not required to provide any further accommodation, as it would impose an unnecessarily demanding level of adversity for the employer. 

The Ontario Human Rights Code identifies three main considerations when assessing whether an accommodation would cause undue hardship:

  1. Cost
  2. Outside sources of funding, if any
  3. Health and safety requirements, if any.

DOES DISCRIMINATION HAVE TO BE DIRECT?

In short, the answer is no. Discrimination can be exhibited directly or indirectly. Direct discrimination occurs when an individual or group is singled out based on a personal attribute, while indirect discrimination is present when there is a rule or requirement that treats everyone the same on its face, but systemically has an adverse impact on some people due to a personal attribute or characteristic. Under the Ontario Human Rights Code, there are currently 17 protected grounds that apply in protected social areas.

The Ontario Human Rights Code, ensures that every person has a right to be free of discrimination within five protected areas of social activity:

  1. Accommodation/housing
  2. Services, goods, and facilities
  3. Contracts
  4. Employment, and
  5. Membership in vocational associations and trade unions

HOW TO DETERMINE IF A DUTY TO ACCOMMODATE EXISTS

When an employer is reviewing the possibilities for an accommodation, they must engage in a four-step process:

  1. Can the employee productively fulfill their existing job as it is presently constituted?
  2. Can the employee perform the core aspects of the existing job in a modified or rebounded form?
  3. Can the employee accomplish the duties of another job in its present form?
  4. Can the employee perform another job in a modified or rebounded fashion?

By answering the above questions, in most cases the employer will have legally fulfilled their duty to accommodate if, after a thorough investigation, they were unable to satisfy the accommodation needs of the employee. 

SITUATIONS THAT DO NOT CONSTITUTE DISCRIMINATION – BONA FIDE OCCUPATIONAL REQUIREMENT 

A Bona Fide Occupational Requirement (“BFOR”) is considered a reasonable prerequisite for a position whereby employers may lawfully discriminate on the basis of age, sex, record of offenses, or marital status if they genuinely relate to the needs of the job and have potential to effect performance. This permits discrimination on a prohibited ground when that discrimination is based on an honest or good faith belief that it is necessary for a legitimate business reason. Examples of a BFOR Requirement are as follows:

  • In Ontario, employees who sell liquor must be 18 years of age;
  • Bus drivers must have acceptable vision and a valid drivers license; 

HOW TO IDENTIFY A BONA FIDE OCCUPATIONAL REQUIREMENT?

In 1999 the Supreme Court of Canada landmark case British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, otherwise known as the Meiorin case shaped our understanding of the legal duty to accommodate in Canada (primarily in the employment sector). 

This case established that accommodation is to be the set standard and that equality and accommodation must be essential parts of all workplace regulations and practices. The Meiorin test, also known as the “Bona Fide Occupational Requirement Test” (“BFOR test”) sets out an assessment for determining if an BFOR is justified given the circumstances. The test is applied on a case-by-case basis and includes three parts. 

The Meiorin Test (Bona Fide Occupational Requirement Test)

To be a Bona Fide Occupational Requirement, the employer must demonstrate that:

  1. The employer adopted the standard for a purpose that is rationally connected to the performance of the job; 
  2. The employer adopted the standard in an honest and good-faith belief that it was necessary to the fulfillment of that purpose; and 
  3. The standard is reasonably necessary to the accomplishment of that legitimate purpose, which requires the demonstration that it is impossible to accommodate the employee without imposing undue hardship on the employer. 

CONTACT US

If you are an employer or employee who is navigating discrimination or accommodations in the workplace we encourage you to contact Toronto employment lawyersSultan Lawyers at 416-214-5111 or via email to khayward@sultanlawyers.com.


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