VI. The Duty to Accommodate

The duty to accommodate will only arise where a prima facie case of discrimination on the basis of family status has been demonstrated, as discussed above. Generally, the duty to accommodate will only become an issue in cases where rules, policies, practices, or institutional structures, assumptions or culture are perpetuating or leading to the disadvantage of persons identified by a particular family status.

In the context of family status, accommodation is usually associated with caregiving needs. Accommodation is central to overcoming the disadvantages experienced by caregivers, particularly in the areas of employment and services. Most of us will be both providers and recipients of care over the course of our lifetimes, so that accommodation of caregiving needs benefits us all.

An individual’s caregiving needs will vary over the course of a lifetime. The nature of the needs associated with caring for children will be, for example, significantly different from the nature of the needs associated with caring for an aging parent. Some needs will remain stable over lengthy periods of time, while others may arise on an emergency basis.

Most often, accommodation of caregiving needs is neither burdensome nor costly; rather, it is a matter of flexibility. A flexible and accommodating approach is ultimately a significant advantage to employers in attracting and maintaining good employees, and to service providers and landlords in expanding their potential markets.

The following sections set out the basic legal test that persons responsible for accommodation must meet, the principles of accommodation, and the shared responsibilities of all parties to the accommodation process.

1. The Legal Test

Section 11 of the Code, combined with section 9, operates to prohibit discrimination that results from requirements, qualifications, or factors that may appear neutral but which have an adverse effect on persons identified by family status. Section 11 allows the person responsible for accommodation to demonstrate that the requirement, qualification or factor is reasonable and bona fide by showing that the needs of the group to which the complainant belongs cannot be accommodated without undue hardship.

The Supreme Court of Canada sets out a framework for examining whether the duty to accommodate has been met.[31] If prima facie discrimination is found to exist, the person responsible for accommodation must establish on a balance of probabilities that the standard, factor, requirement or rule

  1. was adopted for a purpose or goal that is rationally connected to the function being performed,
  2. was adopted in good faith, in the belief that it is necessary for the fulfilment of the purpose or goal, and
  3. is reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the claimant without undue hardship.

As a result of this test, the rule or standard itself must be inclusive and must accommodate individual differences up to the point of undue hardship rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them. This ensures that each person is assessed according to his or her own personal abilities instead of being judged against presumed group characteristics.[32]

The ultimate issue is whether the person responsible for accommodation has shown that accommodation has been provided up to the point of undue hardship. In this analysis, the procedure to assess accommodation is as important as the substantive content of the accommodation.[33]

The following non-exhaustive factors should be considered in the course of the analysis:[34]

  • whether the person responsible for accommodation investigated alternative approaches that do not have a discriminatory effect;
  • reasons why viable alternatives were not implemented;
  • ability to have differing standards that reflect group or individual differences and capabilities;
  • whether persons responsible for accommodation can meet their legitimate objectives in a less discriminatory manner;
  • whether the standard is properly designed to ensure the desired qualification is met without placing undue burden on those to whom it applies; and
  • whether other parties who are obliged to assist in the search for accommodation have fulfilled their roles.

2. Inclusive Design

Many aspects of society have been designed around traditional notions of the ‘ideal family’, and may exclude members of families that do not conform to these conceptions. For example, standard hours of work and overtime schedules reflect an era when it was common for families to have a member at home to provide full-time care for children and elders; policies for birth registration did not until very recently recognize the families created by gays and lesbians; school board policies on bussing may not acknowledge the needs of dual-custody families; and lack of access to part-time university programs excludes persons with significant caregiving requirements. The failure to design with the needs of persons disadvantaged by family status in mind may lead to the creation of barriers, and to discrimination against such persons.

The Supreme Court of Canada has made it clear that society must be designed to be inclusive of all persons, regardless of membership in a Code protected group.[35] It is no longer acceptable to structure systems in a way that ignores needs related to family status; rather the systems should be designed in a way that does not create physical, attitudinal or systemic barriers for persons disadvantaged by family status.

As a corollary to this notion that barriers should be prevented at the design stage through inclusive design, where systems and structures already exist, organizations should be aware of the possibility of systemic barriers, and actively seek to identify and remove them. Where barriers have been identified, organizations must remove the barriers rather than making “one-off” accommodations, unless to do so would cause undue hardship.

Inclusive design is not only a principle of human rights, it makes good sense. Employers who fail to consider the needs of persons with caregiving responsibilities are likely to experience higher levels of absenteeism, burnout, and turnover among employees. Flexible and inclusive practices can be a considerable draw in attracting and retaining highly skilled and motivated workers.[36] Similarly, service providers who do not take into account the needs of families may alienate a significant potential target market.

3. Identifying Needs Related to Family Status

In most cases, accommodation needs related to family status will be connected to caregiving responsibilities. Human rights tribunals have found that the ground of family status must be interpreted to include the caregiving needs associated with the parent-child relationship.[37]

Not every circumstance related to family status and caregiving will give rise to a duty to accommodate. As noted above, the duty to accommodate only arises where a prima facie case of discrimination has been shown. Where rules, requirements, standards or factors have the effect of disadvantaging persons who have significant caregiving responsibilities related to their family status, either by imposing burdens that are not placed on others or withholding or limiting access to opportunity, benefits or advantages available to others, a duty to accommodate caregiving needs related to family status may arise.[38] In most circumstances where there is a significant conflict between an important caregiving responsibility and an institutional rule, requirement, standard or factor, a duty to accommodate will arise.[39]

In considering whether a duty to accommodate has arisen, the following considerations may be of assistance:

  1. The nature of the caregiving responsibility, and of the conflict between that responsibility and the organization’s rules, requirements, standards, processes or other factors
    This factor must be assessed on a case-by-case basis. The more substantial the caregiving obligation at stake, and the more serious the interference of that rule, requirement or factor, the more likely it is that a duty to accommodate will arise. For example, it is more likely that a duty to accommodate will arise with respect to a serious illness on the part of a family member, than with respect to a desire to attend a child’s recreational activity.[40] The assessment of the caregiving responsibility at stake should be grounded in the practical, lived reality of caring for children, elders, or persons with disabilities. It should also take into account the range of family forms that exist: for example, stereotypical assumptions about LGBT people may make their families, and thereby their accommodation needs, “invisible” to employers.
     
  2. The systemic barriers faced by caregivers, including intersectional impacts based on disability, age, gender, sexual orientation, race and race-related grounds, and marital status.
    It is all too easy to consider individual caregiving needs as isolated personal issues. An employee seeking reduced work hours or a flexible schedule to attend to the needs of their children or their aging parents may easily be viewed as simply expressing their personal preferences regarding balancing their various responsibilities. Viewed in the broader light of the disadvantage faced by caregivers, particularly those who are vulnerable by virtue of being racialized, low-income, newcomer, female, disabled or lone-parent, these “one-off personal issues” may be seen in a different light.

    In assessing requests for accommodation based on family status, organizations should consider whether systemic barriers may exist within their own organization, including the representation of persons with significant caregiving responsibilities, the organizational culture, and the inclusiveness of its policies, procedures and decision-making practices. Specific systemic barriers facing caregivers in employment, housing and services are discussed in the relevant sections.
     
  3. The availability and adequacy of social supports for caregiving needs

In determining whether a rule, factor or requirement significantly interferes with a caregiving responsibility, it is important to take into account whether adequate social supports and services are available for the individual to resolve their caregiving needs without accommodation. For example, workers who find that there simply are no adequate childcare or eldercare supports available in the evenings or the weekends may need accommodation from their employers in terms of shifts. Both the adequacy and availability of supports should be taken into account: caregivers should not be required to place their loved ones into situations of significant risk of physical, emotional or psychological harm in order to meet the needs of their employer, landlord, or service provider.

4. Appropriate Accommodation

Where an accommodation need related to family status has been identified, the organization must identify and implement the most appropriate accommodation, short of undue hardship. The determination of what is and is not an appropriate accommodation is a separate determination from an undue hardship analysis.

An accommodation will be considered appropriate if it will result in equal opportunity to attain the same level of performance or to enjoy the same level of benefits and privileges experienced by others, or it if is proposed or adopted for the purpose of achieving opportunity and meets the individual’s needs related to family status.

Example: Rather than require employees with caregiving needs to use their vacation days in order to attend to caregiving needs, and therefore receive a lower level of benefits than other employees, an employer allows employees to use their standard sick days for both their own sicknesses and those of persons they are caring for.

Organizations need not provide more than the individual requires in order to meet the actual identified needs related to family status. For example, if rescheduling of work hours would enable an employee to attend to an important caregiving responsibility, the employer need not provide a paid day off.

The most appropriate accommodation will be that accommodation that most promotes inclusion and full participation, and effectively addresses any systemic issues.

Example: Rather than making a one-time exemption for a student with substantial caregiving responsibilities to complete his degree on a part-time schedule, an educational institution re-examines whether the requirement that students complete their studies full-time is a bona fide requirement. When it determines that it is not, it alters the rule, and permits part-time studies.

It will be more difficult for an organization that has not taken steps to investigate and implement policies and practices that support and include caregivers to justify a failure to accommodate individual requests for flexibility.

It is a principle of human rights law that there is no set formula for accommodation: each person’s needs are unique and must be considered afresh when an accommodation request is made. Accommodations must take into account individual situations and requirements. However, it is also the case that many accommodations will benefit large numbers of persons identified by the ground of family status.

Where the most appropriate accommodation would cause undue hardship, organizations should consider next-best, phased-in, or interim accommodations.

Accommodations must acknowledge the practical realities of caregiving. An accommodation that is not in accordance with good caregiving practices, or that would place an undue burden on the family, will not be considered appropriate.

Example: A parent of a child with a disability has found a centre that can provide expert programming and care for the child after school hours. However, the centre closes at 5:00. The alternative is to leave the child with a neighbouring teenager for the after-school hours; however, due to the nature of the child’s complex medical needs, the parent is very concerned that any error or inattention on this teenager’s part would place the child at risk. While the parent’s employer would prefer the second option because its standard hours run from 9:00 until 5:30, it recognizes that this would not be an appropriate accommodation, and instead allows the parent to work from 8:00 until 4:30.

Examples of potential accommodation strategies in the employment context are provided in section IX.3.

5. Roles and Responsibilities

Accommodation is a multi-party process. Everyone in the accommodation process should work together cooperatively and respectfully to develop and implement appropriate accommodation solutions.

The person seeking accommodation has a responsibility to inform the accommodation provider that he or she has caregiving needs related to a parent-child relationship, and that there is a conflict between those needs and the organization’s rules, requirements, standards, processes or procedures.

Persons seeking accommodation may be expected to make reasonable efforts to first avail themselves of outside resources available to them prior to making accommodation requests to an employer, landlord, or service provider. However, such resources should:

  • most appropriately meet the accommodation needs of the individual,
  • be consistent with good caregiving practices, and
  • not place an undue burden on the family.

Accommodation seekers are in the best position to identify and evaluate such outside resources. However, it is a best practice for employers and service providers to provide assistance to individuals in locating information regarding such resources; for example, through Employee Assistance Programs.

Accommodation providers should accept requests in good faith, unless there are objective reasons not to do so. Where necessary, organizations may request documentation of the validity of the accommodation-seeker’s needs, such as medical documentation related to a family member’s disability, or illness.

Example: An employee has a lengthy history of absenteeism, and has in the past been disciplined for failing to provide valid reasons for absences. When this employee requests flexible start and finish times to address a new eldercare responsibility, the employer requests further information to verify that the need exists.

Organizations may make reasonable requests for information that is necessary to clarify the nature and extent of the accommodation need.

Example: An employee requests a lengthy leave of absence to attend to a serious illness of a child. The employee provides the employer with medical documentation verifying the child’s illness and setting out the length of time that the illness is expected to last.

The organization may also seek reasonable information regarding any available outside resources that the individual has enquired into.

Example: An employee’s father has had a serious fall and is no longer able to manage household tasks on his own. The employee asks for a temporarily reduced workweek so that he can attend to the needs of his father. He indicates to his employer that he has looked into homecare services for his father, and that there is a waiting list of approximately six months. The employer provides him with a reduced workweek for six months.

However, organizations should not seek details of private family arrangements, unless there are objective reasons to believe that the accommodation seeker is not acting in good faith. For example, an employer may not be entitled to know why another sibling is not taking a greater role in caring for an aging parent. Accommodation providers should not make enquiries based on stereotypical assumptions (such as, “Why can’t your wife do it?”).

As information related to family needs and arrangements may be highly personal, organizations should take steps to ensure that information related to accommodation requests is kept confidential, and shared only with those who need it.

Organizations should act in a timely manner, take an active role in seeking accommodation solutions, and bear any required costs associated with the accommodation. Accommodation seekers should cooperate in the accommodation process, provide relevant information, and meet any agreed-upon standards once accommodation has been provided.

6. Undue Hardship

Accommodation providers are not required to implement accommodations that would amount to undue hardship. The test for undue hardship is set out fully in the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate. The same standard applies to all grounds of the Code, including family status.

The Code prescribes three considerations in assessing whether an accommodation would cause undue hardship. No other considerations, other than those that can be brought into these three, can properly be considered. These are:

  • cost
  • outside sources of funding, if any; and
  • health and safety requirement, if any.

The onus of proving that an accommodation would cause undue hardship lies on the accommodation provider. The evidence required to demonstrate undue hardship must be real, direct, objective, and in the case of costs, quantifiable. A mere claim, without supporting evidence, that the cost or risk is “too high” based on impressionistic views or stereotypes will not be sufficient.

In most cases, accommodations for needs related to family status will not require significant expenditures; rather, they involve increasing the flexibility of policies, rules and requirements. This may involve some administrative inconvenience, but inconvenience by itself is not a factor for assessing undue hardship.

Accommodation for persons identified by family status may in some cases cause resentment among others, who perceive these individuals to be receiving unjustified “perks” and privileges. Using an inclusive design approach to accommodation will address some of these concerns, since all may benefit from approaches that increase flexibility and choice. Given that all of us will be either the recipients or the providers of care at some point during our lives, accommodation for needs related to family status ultimately benefits us all. In any case, accommodation providers should take positive steps to educate their organizations about the Code, and ensure that accommodation seekers are not subjected to a poisoned environment.


[31]British Columbia (Public Service Employee Relations Commission) v. BCGSEU [1999] 3 S.C.R. 3 [hereinafter Meiorin] at para. 54.
[32]British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 [hereinafter Grismer] at para. 20.
[33]Meiorin, supra, note 31 at para. 66.
[34]Meiorin, supra, note 31, at para. 65.
[35] In Meiorin, supra, note 31, the Supreme Court said at para. 68:

Employers designing workplace standards owe an obligation to be aware of both the differences between individuals and differences that characterize groups of individuals. They must build conceptions of equality into workplace standards. By enacting human rights statutes and providing that they are applicable to the workplace, the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, in so far as this is reasonably possible. [at 38]

[36] There are numerous studies on the business case for flexible work practices, and the costs to employers of lack of flexibility. See, for example, Catalyst, Beyond a Reasonable Doubt: Building the Business Case fo Flexibility, 2005; Aon Consulting, Canada@Work Study, 1999; Conference Board of Canada, Survey of Canadian Workers on Work/Life Balance, 1999; L. Duxbury et al., An Examination of the Implications and Costs of Work-Life Conflict in Canada (Ottawa: Health Canada, June 1999).
[37] In Brown v. M.N.R., Customs and Excise (1993), 19 C.H.R.R. D/39, the Canadian Human Rights Tribunal stated at para. 75 that:

It is this Tribunal’s conclusion that the purposive interpretation to be affixed to s. 2 of the CHRA is a clear recognition within the context of ‘family status’ of a parent’s right and duty to strike that balance [between family needs and employment requirements] coupled with a clear duty on the part of an employer to facilitate and accommodate that balance within the criteria set out in the Alberta Dairy Pool case .... To consider any lesser approach to the problems facing the modern family within the employment environment is to render meaningless the concept of ‘family status’ as a ground of discrimination.

[38] In Health Sciences Association of British Columbia v. Campbell River and North Island Transition Society, [2004] B.C.J. No. 922 (B.C.C.A.) [hereinafter “Health Sciences”] the British Columbia Court of Appeal emphasized that prior to considering accommodation based on family status, a prima facie case of discrimination must be made out, stating at para. 38 that: 

[The parameters of the concept of family status] cannot be an open-ended concept … for that would have the potential to cause disruption and great mischief in the workplace; nor, in the context of the present case, can it be limited to ‘the status of being a parent per se’ as found by the arbitrator … for that would not address serious negative impacts that some decisions of employers might have on the parental and other family obligations of all, some or one of the employees affected by such decisions.  

[39] “[A] prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee”, Health Sciences, ibid, at para. 39.
[40] In a recent decision of the Saskatchewan Human Rights Tribunal, Palik v. Lloydminster Public School Div. No. 99 2006, CHRR Doc. 06-630 at para. 124, an employer’s termination of an employee who attended her diabetic son’s hockey tournament during the working day, without permission from her employer, was found not to constitute discrimination on the basis of family status, on the basis that there was no serious interference with a substantial parenting obligation.

Organizational responsibility: