PROCESSES AND SOLUTIONS
LORNE FOSTER
SCHOOL OF PUBLIC POLICY AND
ADMINISTRATION
DEPARTMENT OF EQUITY STUDIES
Introduction
A. Barriers
B. Duty to Accommodate: principles, most
appropriate accommodate, short of undue
hardship
C. Duty to Accommodate: Employment
D. Types of Accommodations in the Workplace
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
Growth of “rights culture”; expectations of fair
treatment

Discrimination on enumerated grounds prohibited

Intentional and unintentional discrimination
prohibited – “direct” and “adverse effect”
discrimination

Remedial, rather than punitive, focus

Enforcement: Human rights Commissions (and
some other venues – e.g., labour arbitration)
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The duty to accommodate is a legal standard, it is the
law of the land
Accommodation is built on:
 Respect for dignity
 Treating people as individuals [individual needs
approach]
 Removal of barriers
 Inclusive design
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
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
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People may need accommodation for different reasons –
the most common grounds for a request are:

Disability

Creed

Family status

Sex-related (pregnancy & breastfeeding)

Gender identity

Gender expression
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
Physical

Attitudes

stereotypes,
attitudes

Systemic

policies or
practices
that block
out people
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… because of
disability, age,
having children,
pregnancy or
breastfeeding, or
certain religious
beliefs
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a.
b.
c.
d.
Principles of accommodation
Most appropriate accommodation
Undue hardship
Shared responsibilities
1.
Dignity: respect for dignity.
2.
Individualization: treating people as individuals.
3.
Inclusion: removing barriers and designing
with many needs in mind so that everyone is
included.
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In employment the duty to accommodate requires adjusting
the working conditions so people can continue to work
when they are on code grounds.
These needs can be accommodated through:

Modified workspace

Adjusting work standards

Flexible work schedules, dress codes, or break
times

Modified changing facilities
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Accessible buildings and spaces improve
service for everyone. Consider:
ramps, elevators, automatic
doors and wider doorways
 accessible washrooms
 change-tables, family
change-rooms

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


a process, not a onetime event
a matter of degree,
not all-or-nothing
a range of possibilities
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
Full accommodation that most
IDEAL

 NEXT BEST

Phased-in full accommodation

Accommodate after saving up

Alternative accommodation: transfer to


NEXT BEST
LESS IDEAL
respects dignity and can apply right away
another job – temporary or permanent
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




most respects the person’s
dignity
meets the person’s needs
best promotes integration and
full participation
ensures confidentiality
is different for each person
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
is a defense under the Code

some degree of hardship may be required

considers all elements of the accommodation
request
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
costs

outside sources of funding, if
any

health and safety, if any
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For undue hardship, costs must be:
quantifiable e.g. financial costs such
as capital costs or operating costs;
1.
shown to be related to the
accommodation; and
2.
so high that they change the nature of
the business or cause it to go out of
business
3.
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1.
consider all costs related to the
accommodation request;
2.
explore ways to lower costs;
3.
do remaining costs, if any, cause
undue hardship?
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






recover costs through normal business
spread out across an organization
grants, loans or funds from other sources
apply accounting principles like amortization or
depreciation
creative or low-tech designs
“Second Injury and Enhancement Funds”
phase-in accommodation or save up for it
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



How big is the organization?
Can costs be recovered through
normal business?
Can other parts of the company
take on part of the costs?
Can money be saved up in a
reserve fund?
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Consider government and non-government
grants,
subsidies or loans:


to make buildings accessible
or for tax credits
for making services available
directly to persons with disabilities
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May be set by:
 law
 regulations
 rules
 practice
 procedure
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Modifying or excusing a health and
safety requirements may create risks
that have to be weighed
If the risk after accommodation is big
enough to outweigh the benefits of
enhancing equality, this may be undue
hardship
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Assessing the health and safety requirement:
1.
is the requirement bona fide (reasonable)?
2.
does it create a barrier for the person who is
identified under the Code?
3.
if yes, can the requirement be adjusted or
excused?
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Lower high risks where possible:

by phasing in safety features, introducing
new technology, adjusting job descriptions
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How serious is the
risk?
How does it compare
with other risks?

what may happen, how often,
to whom, how seriously it
would affect people

in some jobs, organizations,
everyday life, society
allow this choice where
possible – “dignity of risk”

Is the person willing to
take on a risk?


person should fully
understand the risk
risk should not likely affect
others
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
business inconvenience or
customer complaints

collective agreements

what others want or their views
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
the standard is high

must be supported with
real facts

is different for each
organization and
situation

costs, outside sources of funding,
health and safety

financial statements, budgets,
data, expert opinion, information
about accommodation and how
the person asking for
accommodation is affected

For example, the standard for a
supermarket would be higher than
for a small family-run grocery stor.
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Person asking:
 makes the request
 explains what is needed and why
 provides necessary information
 discusses solutions
 co-operates with experts
 meet work standards
 works with accommodation-provider
during the process
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Accommodation-provider:
 accepts explanation of needs
respect the dignity of the person
asking for accommodation
 assesses individual needs
 actively discusses and look for
solutions
 considers undue hardship and
options in a timely manner
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Employment



barriers in employment
“bona fide occupational requirement” (BFOR)
and “essential duties” of the job
types of accommodation
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barriers may be with:




buildings
policies
procedures
culture
cooperation is needed to
accommodate:
 hiring, promotions
 training
… and in considering:
 benefits
 workplace conditions
 discipline
 schedules
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
policies or requirements seem neutral,
but when applied, create barriers or conflicts; or

when assessing if the employee can do the
essential duties of the job
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1.
Are the duties bona fide
occupational requirements
(BFOR)?
a.
connected to the job;
made with the belief that they
are needed for the job; and
reasonably necessary for a
work-related purpose
b.
c.
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Section 17 of the
Code says that
there’s no
violation of the
Code if the
employer can’t
accommodate
because doing so
would cause
undue hardship
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2.
If, yes, can the employee do
the essential duties with
accommodation)?
a.
Can the employee do the essential
duties?
if not, what accommodation is
needed?
Provide accommodation, then assess
the employee again
b.
c.
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Physical

modified workspaces: creating
more space, using different
equipment, adjusting equipment
settings
MARCH
6, 2012
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Time

attendance. leaves of absence.
flexible work schedules, shorter
break times or a compressed work
week, job sharing
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Job duties


adjusted work standards
other work options: is other work
available soon? If not, is a new
position possible? Would extra
training be needed? Alternate work
could be short-term or permanent.
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Other


accommodating return to work, to
the point of undue hardship
employee assistance programme
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