History of Duty to Accommodate

1. The early development of Canadian human rights law reflected the need for legislation protecting workers (among others) from being excluded from the same economic opportunities as others because of direct, obvious, and often intentional discrimination. Workplace rules and practices about hiring and promotion, or different wages or working conditions for workers based on their gender or race, are examples of such obvious and direct discrimination.

2. In the 60’s and 70’s, Canadian Society and law began to recognize that, often, the barriers faced by certain groups of workers were NOT the obvious, direct, or intentional kind but rather, a result of workplace arrangements, rules, or policies that were neutral on their face, applied equally to everyone in the workplace, and were never intended to discriminate, but which had a discriminatory effect on a group or individual because of a characteristic protected by human rights legislation.

3. By recognizing this systemic type of discrimination, Canadian law moved from a “formal” notion of equality (“if all people are treated identically than they are treated equally”) to a “substantive” notion of equality (“in order to treat people equally, we may have to treat them differently from each other”).

4. The essence of the duty to accommodate is this recognition: though there was no intention to discrimination, some policy, practice, rule or requirement had a discriminatory effect on a worker based on a protected human rights characteristic of that worker. In order to eliminate this adverse effect, an employer is required, under human rights law, to accommodate that worker (change their conditions of work) in a way that off-sets the unequal economic opportunity resulting from the application of the otherwise neutral rule or working condition.

5. Of course, there may be times when a rule that negatively affects a worker can nevertheless be justified as a genuine necessity. This is why all Canadian human rights legislation provides that a discriminatory workplace rule can be justified if the employer proves that it is a bona fide occupational requirement.

6. Definitions

a)
In common sense terms, the duty to accommodate can be seen as a legal duty on an employer, and to a lesser extent on a Union and an accommodation-seeking worker, to take steps to offset the discriminatory impact of a workplace requirement, rule, policy or practice by accommodating that worker to the point of undue hardship.


b) Another way of seeing it is as an obligation on parties to an employment relationship to take measures, short of undue hardship, to be flexible with respect to the working conditions of workers protected by s.4 of the NB Human Rights Code, in order to allow them to remain in productive employment.


c) A technical way of seeing it is as part of the Employers “bona fide occupational requirement” defense to an allegation of workplace discrimination.


d) A humanistic way of seeing it is an effective tool for social justice, in that it “levels the playing field” for historically disadvantaged individuals, and insures that their human right to participate in the economic benefits enjoyed by others is realized.

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©Conni Kilfoil, Equality Representative, Canadian Union of Public Employees

-ckilfoil@cupe.ca