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: 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.