Duty to Accommodate

Human Rights and
the Duty to Accommodate

Learn what accommodating means, why it’s important to remove barriers, about rights and responsibilities for accommodating, and the principles of accommodation. The module explains the duty to accommodate and the standard of undue hardship, and how accommodation is a shared responsibility.

This eLearning module is for the public, private and not-for-profit sectors. It has been divided into 2 parts, and takes about 20-30 minutes. To begin, click the optional pre-learning quiz or “The Code, Accommodation and Undue Hardship.” 

 
To Pre-learning Quiz
Pre-learning quiz
What do you already know?
To Video 2
Part 1.
The Code, Accommodation
and Undue Hardship
To Video 3
Part 2.
Examples of Accommodation
To Video 5
Check what you learned
Quiz for Duty to Accommodate

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Learn what accommodating means, why it’s important to remove barriers, about rights and responsibilities for accommodating, and the principles of accommodation. The module explains the duty to accommodate and the standard of undue hardship, and how accommodation is a shared responsibility.

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Cover photo. Links to Human Rights and the Duty to Accommodate

Prelearning quiz – How much do you know about the Duty to Accommodate?

What do you already know about the “Duty to Accommodate”? (Quizzes are optional.)

QUESTIONS: 1. True or False: I only have to accommodate when someone asks for it. 2. True or False: All I have to do is set out my accommodation needs. The process is up to the accommodation-provider. 3. True or False: Accommodation is about meeting needs on a one-time basis. 4. True or False: There’s no set formula for accommodation. 5. True or False: My employer accommodates my needs, but some people in the factory see it is favouritism. Other people’s views can’t influence the accommodation process. ANSWERS: 1. False. Employers, service providers and housing providers have to be proactive. For example, they may have a policy or requirement that has unfair effects for persons under the Code, which needs to be assessed and adjusted. 2. False. The person asking for accommodation and the person providing accommodation have to work together. 3. False. Accommodation is a process, and there’s a range of what’s possible. It’s not a one-time event or an all-or-nothing approach. 4. True. Individual needs must be considered. Some accommodations work for one person but not for others. Remember, there is no set formula. 5. True. Once again, accommodation is about meeting individual needs. Accommodation is not about what other people’s opinions or what they prefer.

PART I. The Code, Accommodation, and Undue Hardship

Welcome Welcome to the Ontario Human Rights Commission’s eLearning module on the Duty to Accommodate. What you'll learn At the end of this module you will understand what accommodating means, why it’s important to remove barriers, and about rights and responsibilities for accommodating. Part I Menu This module has 2 parts. In Part 1 I’ll introduce you to the Code and the principles of accommodation. Then I’ll explain the duty to accommodate and the standard of undue hardship, and how accommodation is a shared responsibility. Part II Menu In Part II, I’ll give some examples of accommodating in the workplace, in services and in housing. At the end of the module there is a quiz and you can check what you learned. Part 1 The Code, Accommodation, and Undue Hardship A. Introduction Section A is an Introduction to the Code and Accommodation. The Code ensures The Ontario Human Rights Code ensures: equal rights and opportunities freedom from discrimination the dignity and worth of every person Accommodations Sometimes people need individual arrangements so they can do their jobs, to access services and buildings, and to enjoy housing, equally. These arrangements are called accommodations and they can be based on any Code ground. Accommodation means not denying people jobs, services or housing in the first place, if they can be accommodated without causing undue hardship Accommodation usually involves needs linked to disability, beliefs and practices related to a person’s creed or religion, family responsibilities, or gender. There are three principles of accommodation. Section B. The Duty to Accommodate Section B is on The Duty to Accommodate. It covers the legal standard, the 3 principles of accommodation, and Bona fide Occupational Requirement or B-F-O-R for short. It’s the law The duty to accommodate is a legal standard. It’s the law. Most often the duty to accommodate arises from a person’s disability, creed family status or gender. In employment, the duty to accommodate requires adjusting working conditions so that people can continue to work when there are Code grounds that may make it hard for them to work without accommodation. The same applies to services and housing. It may be hard for for people with Code-related needs to receive services and housing without accommodation. Three Principles of Accommodation The three principles of accommodation are to… design society inclusively, remove barriers, and to accommodate any remaining individual needs in a way that most respects dignity. 1. Inclusive society First, start with a society that is designed inclusively. When setting up requirements, policies and procedures, buying new equipment or designing work, service or housing spaces, make choices and decisions that do not create barriers for persons protected under the Code. For example, when setting break policies, take into account the needs of pregnant or breastfeeding women, people whose religion may require them to take time to worship during the work day, and the needs of people with disabilities. If you’re an employer, be proactive - make human rights part of everything you do. 2. Remove existing barriers Second, remove existing barriers. Everyone should be able to access and enjoy the same spaces. Design workplaces, service and housing facilities to include everyone who uses them. 3. Respect dignity Third, accommodate any remaining individual needs in a way that most respects dignity. Make sure both the accommodation process and solutions respect the dignity of the person asking for accommodation. Dignity includes maintaining privacy, confidentiality, comfort, autonomy, individuality and self-esteem. Treat people as individuals. Each person’s needs are unique and must be considered separately. What works for one person may not work for another. Bona Fide Requirements (BFR) A requirement that creates barriers for some people because of a Code ground. must be removed unless it is a “bona fide occupational requirement” or BFOR for short. For a requirement to be bona fide, it must be… connected to the purpose it was set for, made in “good faith” and with the belief that it is needed for the a specific purpose or goal, and reasonably needed to achieve this purpose or goal. If the requirement is needed and there is no more inclusive alternative to avoid the negative effect, then there is still a duty to accommodate individual needs to the point of undue hardship. We'll talk more about undue hardship in Section C. Job Requirements in Ads For example, job ads often say a driver’s licence is needed. But if the job doesn’t involve driving this requirement should be dropped because asking for a licence is a barrier to people who cannot drive because of, for example, a disability. The duty to accommodate requires The duty to accommodate requires that the most appropriate accommodation, be determined and carried out, to the point of undue hardship. Let’s go through each part of the duty to accommodate. Accommodation may require... Appropriate accommodation may require modifying duties, standards, rules, services, facilities or workstations, or providing assistive devices or other support, or allowing some time off to address needs based on Code grounds. If a less expensive or less disruptive option is considered, it must still meet that person’s needs. After the accommodation is in place, the person must be capable of carrying out essential duties or meet essential requirements. If not, the person’s entitlements must end. However, there may be an obligation to provide alternative work depending on the circumstances. Accommodation may not be appropriate... An accommodation would not be appropriate if, for example, it changes the essential nature of the employment relationship, enterprise, service or tenancy. An example might be requiring a company to change what it produces to a product outside the business’ specialty, or destroying essential historic features of a heritage property. An accommodation might not be appropriate if it substantially interferes with rights and entitlements of others, for example, by taking someone else’s job and leaving them unemployed. C. Undue Hardship Section C is on Undue hardship. The 3 factors to consider for undue hardship are financial costs, outside sources of funding and health and safety risks. Undue hardship — a high standard The duty to accommodate may not have to be fully met if it would cause undue hardship. Undue hardship is the legal limit of the duty to accommodate. It refers to situations where severe negative effects outweigh the benefit of providing accommodation. The law has set a high standard for undue hardship. It expects that there will be real effort to accommodate and that there may be some hardship. The duty to accommodate includes looking carefully and thoroughly at the request as well as the ability to meet the request. Even if there is undue hardship, the duty includes exploring other options. 1. Cost Remember, the law sets a very high standard for costs. For example, if the financial costs for accommodation cause a company to go out of business, this would be undue hardship. When assessing costs... When assessing the costs of accommodation think about them in relation to the entire organization. What may not cause undue hardship for a large company might be undue hardship for a small business. Next, explore ways to keep costs low or ways to recover costs through the business. An example is creative designs, or phasing in accommodation as you save up for it. 2. Health & safety risks Health and safety risks are the second factor that may cause undue hardship . These risks might relate to rules set by law, the industry, or the organization to protect workers and the public. There may be undue hardship if, for example, the accommodation violates occupational health and safety regulations. 3. Outside sources of funding The third factor is outside sources of funding, such as grants, loans or tax breaks to cover the costs of the accommodation. If the accommodation is for an injured employee, there may be funding to help with their return to work. Employers must Employers must try to keep all workers safe and still accommodate the needs of the worker with a disability. When accommodation is in place and a significant risk remains for others, it will be undue hardship. If a significant risk remains only for the worker with a disability, they might have the right to accept the risk. The accommodation-provider must explain the potential risk to that person and make sure that consequences are understood. At some point though, high risk to one's self may still amount to undue hardship. Assessing health and safety risks... Here’s how health and safety risks can be assessed. First, assess the seriousness of the risk after the precautions are taken to reduce the risk. Then ask these questions: What could happen that would be harmful? How serious would the harm be if it occurred? How likely is the potential harm to happen? Is it a real risk, or merely hypothetical or speculative? Who will be affected if it occurs – other people or just the person asking for accommodation? Also look at what amount of risk for that activity is normal for other people working in that type of organization or sector or in society in general. Where the risk is high, think about options to lower the risk such as introducing extra safety measures, using new technology or by adjusting job duties. Undue hardship is NOT about: ...business inconvenience, customer or staff complaints, requirements in contracts and collective agreements that aren’t flexible, or what others want or their views. Remember, any changes to an organization must cause extreme difficulty to cause undue hardship. Collective agreements can’t block Code-related accommodations. The Code takes priority over collective agreements and other contracts. If the union cannot show that the accommodation would cause undue hardship, it has to work with the employer and the employee to help with the accommodation. D. Shared responsibility Section D is entitled “A Shared Responsibility”. It sets out the responsibilities of the person who needs accommodation and the accommodation-provider in the accommodation process. Accommodation requests The duty to accommodate and the right to be accommodated go hand-in-hand. A person asking for accommodation should: Tell the organization about Code-related needs, co-operate by providing needed information, and work with everyone involved to explore solutions. Providing accommodation The accommodation-provider needs to: Accept requests in good faith, act quickly once needs are known, only ask for information related to accommodation needs, actively search for solutions, get expert help if needed, cooperate with other parties where needed, such as a union, make sure the accommodation process and solutions respect the dignity of the person asking for accommodation, keep information confidential, make sure there is no reprisal or punishment for requesting accommodation, and cover the costs of accommodation. Accommodation is a process Accommodation is a process and a matter of degree. It’s not an all-or-nothing proposition! The best accommodation is full accommodation that most respects a person’s needs and dignity and can be put into place right away. If accommodating right away is not feasible or would cause undue hardship, there’s a duty to put in the next-best accommodations for the time being. This can be done by phasing-in the accommodation over time or accommodating fully after the organization has either saved up for the costs or has found new ways to deal with any health and safety concerns. E. Review of Key Points Let’s review some of the key points in this training. Or, you can go directly some examples of accommodation. Accommodation is built on respect for dignity and treating people as individuals,. removing barriers and inclusive design. The Duty to Accommodate is the law. Undue hardship is the legal limit of the duty to accommodate and it to situations when severe negative effects outweigh the benefit of providing accommodation. The 3 factors considered for undue hardship are: financial costs, outside funding, and health and safety risks. Accommodation may not have to be fully met if to do so would cause undue hardship, a high standard. Accommodation is a two-way street – the person asking for accommodation and the person providing accommodation have to work together. Consider individual needs. Some accommodations work for one person but not for others. Remember, there is no set formula. Where to next? To continue to the next section use the next button, the link in the in the left sidebar menu, or hold CTRL, Alt, and Shift and press the Right Arrow key. Congratulations! You have just completed Part 1 of the Ontario Human Rights Commission’s e-learning module on Human rights and the duty to accommodate: The Code, Accommodation, and Undue Hardship.

PART II. Examples of Accommodation

PART II. Examples of Accommodation In Part II, I’ll share some examples of accommodation. F. Accommodating in the workplace In section F, I’ll share some examples of how the duty to accommodate applies in the workplace. We’ll cover: Types of barriers, the information an employer is entitled to know, recognizing bona fide job requirements and essential duties of the job, and I’ll give you some options for accommodating in the workplace. Workplace barriers Physical barriers include things like providing steps but no ramps or elevators. Information and communication barriers can make it hard for people to receive or give information, such as using unclear language or print that’s too small. And attitude can be the biggest barrier. “Ableism” is a tendency to see people with disabilities as less worthy, underestimating their potential, or excluding them from decisions that affect them. Even supportive employers may have workplace barriers, with for example, their buildings, policies and procedures, individual attitudes and workplace culture or with job requirements. Employees, employers and unions need to work together to make sure that the appropriate accommodation is considered in hiring, training, promotions and performance evaluations, in work benefits and conditions, and when scheduling and disciplining employees. Job Requirements Job requirements sometimes create barriers for people who identify with a Code ground. When this happens, the employer must show that the rule is a “bona fide occupational requirement.” What's a BFOR? Sometimes employers ask for requirements that aren’t necessary for the job. Written tests for jobs that don’t require writing may screen out people who speak English or French as a second language. Psychological tests may favour one group over others. Unless a physical demand is an essential job duty, it shouldn’t be in a job description or used to evaluate applicants. For example, a job description for a cashier should not say “heavy lifting required” unless it is actually a significant part of the job duties. Job descriptions A person’s age appears on a driver’s licence. It may also record restrictions related to disability. A job description should clearly say if driving is essential to the job. Only ask to see the drivers licence after making a conditional offer of employment. If a job description requires a certain level of fluency in English or any other language, it must be a bona fide requirement for the job. Requiring Canadian work experience may limit applications from recent immigrants, and could be discriminatory because of race, place of origin or ethnic origin. Assessing skills and prior experience shouldn’t be limited to contacting a Canadian reference or insisting on Canadian experience. Give all relevant experience and references equal consideration. Inflated job requirements, like requiring a university degree when a high school diploma will do, may also cause unnecessary barriers for some groups protected by the Code. Separating duties The Code guarantees equal treatment in employment to everyone who can perform the essential duties of a job. No one can be judged unable to perform those duties until the employer makes efforts to accommodate that person up to the point of undue hardship. Accommodating a person within their normal job is the first goal. Start by separating the essential from the non-essential duties of the job. Non-essential tasks may need to be re-assigned to another person. Assess the employee’s ability to perform the essential duties. If the employee can’t perform the essential duties or requirements of a job, the employer must consider any accommodation, to the point of undue hardship, that allows the employee to do these essential duties. Accommodation in the workplace Let’s try this scenario: Kali works at the photocopy shop counter taking customers’ orders and helping them use computers and the photocopier. She also restocks the paper in the photocopiers. Kali hurt her back and her doctor says she can’t lift anything over 10 pounds or stand for more than 20 minutes. Kali asks the employer to accommodate her with a chair so she can sit at the counter and by asking another employee to restock the printing supplies. Is serving customers at the counter an essential part of the job? Essential duties The employer can accommodate the request for a chair and can re-assign any lifting over 10 pounds to another employee. In exchange, the employer might assign her some new non-essential duties within her accommodation needs. The employer can then assess the employee to make sure she can still perform the essential duties of her job, which are serving clients and helping them with printing technology. Most common grounds People may need accommodation for different reasons. Under the Code, the duty to accommodate applies to all grounds, but requests are most commonly based on the grounds of disability, creed, family status, gender-related needs such as pregnancy and breastfeeding, gender identity and gender expression. Types of accommodation These needs may be accommodated through modified workspaces, adjusted work standards, flexible work schedules, adjusted dress codes and break times, and modified changing facilities, among other solutions that ensure full and equal participation and respect for individual dignity and needs. G. Accommodating in services and housing Section G is on accommodating in services and in housing. It covers how accommodating benefits everyone, accessible buildings and spaces, and provides examples of accommodating in services and in housing. Accommodating benefits everyone. Accommodating benefits everyone. Accommodating opens doors to more customers and better customer service. Accommodating means that everyone has the same access to education, health care and social services. Ensuring access and creating “barrier-free” environments can mean making changes to buildings, facilities or service schedules. It can also mean changing policies or practices and program designs or requirements. Accessiblity We must all be able to enter and leave buildings and spaces. Everyone benefits from accessible buildings. Ramps, elevators and wider doors accommodate wheelchairs, walkers and strollers. Public washrooms and recreation facilities with change tables and family change rooms mean that young families are included. Accessible buildings and spaces There are many options for providing equal services. By keeping everyone’s needs in mind, service providers can design programs, requirements and approaches that include all their customers. For example, “next stop” announcements on buses let people with reduced vision know when it is their stop. But this also helps tourists and others who do not know the route. Examples of accommodating Here are some examples of accommodating in services and in housing. Accommodating in education When accommodating in education, offer schedules with day-time or evening classes, or degrees with distance education or part-time options, to allow students with care-giving or disability-related needs to take part. Accommodation may also require providing leaves of absence or offering different ways for students to do exams or assignments. Dress codes should be flexible for religious beliefs and learning materials and methods should be accessible to everyone, including people with disabilities. Accommodating in housing The duty to accommodate applies to people or organizations that own, run or manage housing. This could be a home or condo owner acting as a landlord where they are renting a separate unit that doesn’t involve sharing a bathroom or kitchen with the owners. It may be a property management company, or a social service agency or government agency that provides or manages housing. These may also be liable if their representatives do not meet their responsibilities under the duty to accommodate. Accommodating tenant’s needs Like employers, housing providers must accommodate unless doing so causes undue hardship. While accommodation needs can be different for each tenant, meeting those needs doesn’t have to be expensive and they can benefit everyone. To meet the duty to accommodate, housing providers may have to make physical changes to the building, or reconsider rules and regulations that cause barriers. Install ramps or elevators, fire alarms and door-bells that ring and flash, to help people who are deaf, door handles that are easier to use, wider doorways for people who use wheelchairs, and accessible designated parking for people with disabilities. Any expensive changes could be phased in if they would cause undue hardship. Where to next? To continue to the next section use the next button, the link in the in the left sidebar menu, or hold CTRL, Alt, and Shift and press the Right Arrow key.

Check what you learned

What have you learned? (Quizzes are optional.)

MULTIPLE CHOICE: 1. Accommodating is key to human rights. It’s about: a. Making individual arrangements so people can do their jobs, access services and buildings, and enjoy housing, equally. b. Not denying people jobs, services or housing in the first place, if they can be accommodated without causing undue hardship c. Situations that involve needs linked to disability, beliefs and practices related to a person’s creed or religion, family responsibilities, or gender. 2. The 3 principles of accommodation: a. Design to include everyone b. Consult only with experts c. Remove barriers d. Respect dignity e. Adjust policies The three principles of accommodation are to design society inclusively, to remove barriers and to accommodate any remaining individual needs in a way that most respects dignity 3. The duty to accommodate is: a. A legal duty required under the Code. It’s the law. b. In employment, it means adjusting working conditions so that people who are identified by Code grounds can continue working. c. In housing, It means that people have a right to live where they want. d. In services, it means making sure clients are well served. 4. TRUE or FALSE. The duty to accommodate applies to unions. 5. TRUE or FALSE. Accommodating is the responsibility of the person who needs it.

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You have completed the Ontario Human Rights Commission’s eLearning module on human rights and the Duty to Accommodate.

Please complete our short survey. Your feedback will help us improve our eLearning so we can better meet your needs.

Congratulations! You have completed the Ontario Human Rights Commission’s eLearning module on human rights and the Duty to Accommodate. For more information, please use the links on your screen. Please complete our short survey. Your feedback will help us improve our eLearning so we can better meet your needs.